European Union (Withdrawal) Bill

Yvette Cooper Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Davis]

In a moment.

To do that, the first step the Bill takes is to preserve all the domestic law we have made to implement our EU obligations. That mainly means preserving thousands of statutory instruments that have been made under the European Communities Act, with subjects ranging from aeroplane noise to zoo licensing. It also extends to preserving any other domestic law that fulfils our European Union obligations or otherwise relates to the European Union.

Equally, the Bill converts European Union law—principally EU regulations, all 12,000 of them—into domestic law on exit day. It also ensures that rights in the EU treaties that are directly effective—that is, rights that are sufficiently clear, precise and unconditional that they can be relied on in court by an individual—continue to be available in UK law.

I have no doubt that there is much about EU law that could be improved, and I know that this Parliament will, over time, look to improve it. [Interruption.] Including the hon. Member for Caerphilly (Wayne David), who laughed just then. But that is not the purpose of this Bill. It simply brings European Union law into UK law, ensuring that, wherever possible, the rules and laws are the same after exit as before.

Just as important as the text of EU law is the interpretation of that law.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Will the Secretary of State give way?

[Mr Davis]

In a moment.

For that reason, the Bill ensures that any question as to the meaning of retained law is to be decided on in UK courts in accordance with the Court of Justice’s case law and retained general principles of European Union law as they stood on exit day. That approach maximises stability by ensuring that the meaning of the law does not change overnight and that only the Supreme Court, and the High Court of Justiciary in Scotland, will be able to depart from retained EU case law. They will do so on the same basis on which they depart from their own case law. Any other approach would either actively cause uncertainty or fossilise EU case law for ever.

[Yvette Cooper]

rose—

[Stephen Doughty]

rose—

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[Mr Davis]

Let me be clear: the absence of the charter will not affect the substantive rights available in the UK. As I have said before at the Dispatch Box, if an Opposition Member or anyone in the House—I am thinking of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve); I will come to him in a minute—finds a substantive right that is not carried forward into UK law, they should say so and we will deal with it.

[Yvette Cooper]

rose—

[Mr Davis]

In the several months since I said that, no one has yet brought my attention to a right we have missed. It may be that that will happen in the next two minutes—I will start by taking the intervention of the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and then come to my right hon. and learned Friend the Member for Beaconsfield.

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[Yvette Cooper]

The Secretary of State will know that the key issue is not what Ministers say is the aim of the Bill, but what are the actual powers in it. So can he tell the House what safeguards there are anywhere in the Bill—in proposed statute—that would prevent Ministers from using clause 7, clause 9 or clause 17 to completely rewrite extradition policy in future, in relation to the demise of the European arrest warrant, without coming back to Parliament with primary legislation?

[Mr Davis]

I will come to the details in a moment, but there are a number of limitations, one of which is that we cannot impinge on the Human Rights Act 1998. That goes straight to the point that the right hon. Lady raises.

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[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

This has been a very thoughtful debate, and I hope that the Government are in no doubt about the scale of parliamentary concern about the way in which the Bill concentrates powers in the hands of Ministers.

In his opening speech, the Secretary of State recognised that the Bill is not what will take us out of the EU; Parliament has already voted for article 50, which will take us out of the EU—and rightly voted for it, as well. However, Parliament also has a job to do to hold Ministers to account and the Bill, as drafted, stops us doing that. It stops us standing up for democracy in this House, and it stops us making sure, frankly, that the Government do not screw up Brexit in the process they put it through and the decisions they take.

Many of the purposes behind the Bill are right. Parliament will need to repeal the 1972 Act, and Parliament will also need to transfer EU-derived law into UK law. As the Chair of the Select Committee, my right hon. Friend the Member for Leeds Central (Hilary Benn), has already said, we will have to have a Bill, but not this Bill. There is a choice about the way in which we do this, and we do not have to do it in a way that concentrates so much power in the hands of a small group of Ministers.

Let me run through some of our concerns. The shadow Secretary of State, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), set out a very forensic and powerful account of the Bill and the detailed powers that it will give Ministers, with no safeguards in place. There are the powers in clauses 7 and 17, as well as those in clause 9, and there is the fact that it will reduce British citizens’ rights. Far from allowing Brits to take back control, the Bill weakens protection for employment rights, equality and environmental standards; it weakens remedies and enforcement; and, crucially, it reduces the right of redress. It is both sad and telling that Ministers have chosen to exempt the charter of fundamental rights. I hope that that will be reversed, and that they will change their position.

The greatest concern—I want to focus on this point—is the concentration of powers in a way that, frankly, is not British. Parliament will not be able to do its job to stand up for citizens’ rights against a powerful Executive if the Bill goes through in the way that it has been drafted. The unprecedented powers given to Ministers in certain clauses—clause 7 and, in particular, clause 17 —are powers that would make a Tudor monarch proud. Everyone realises that the sheer extent of the provisions means that we will need both primary and secondary legislation as part of the process, but not to this scale, not with this lack of safeguards and not with this concentration of power in Ministers’ hands.

The Bill will give Ministers the power to change primary legislation for an incredibly broad range of reasons, and the test will simply be whether they think it is appropriate. The test is not whether a change is needed, proportionate or essential, but only whether Ministers consider it to be appropriate. The Bill also includes the power—the Secretary of State made slightly disingenuous remarks in the way he presented this—to create new criminal offences so long as sentences are not more than two years. That is a serious power to give Ministers on such a broad area without parliamentary scrutiny.

Let me give some examples of the things that the Bill would do. I raised the European arrest warrant with the Secretary of State, and his response to my question about what safeguards there would be was simply to point to the Human Rights Act. The Human Rights Act—by the way, Conservative Front Benchers have pledged to get rid of it—is not a sufficient safeguard. We know that we should not rely on the courts to have all the safeguards, and that we in Parliament should provide some of them as well. We also know that within the scope of the Human Rights Act there is a huge range of potential policies on extradition on which Parliament should have a say.

On my past record, I suspect that I am probably closer to the Prime Minister and the Home Secretary on what the extradition policy should be than many of their Back Benchers. I still do not think, however, that they should have unlimited powers to decide extradition policy without having to come back to Parliament.

We debated the Investigatory Powers Act 2016 forensically—in fact, it was an example of Parliament at its best. We gave that Act detailed consideration that balanced security and liberty and changed it as it went through. Given, however, that some of the Act’s genesis depended on ECJ judgments and its relationship with EU legislation, the Bill today could give Ministers the power to reopen the Act and change the primary legislation that we put forward with great care, and—again—to do so through secondary legislation only, without there being proper safeguards and checks in place. Ministers will have the power to rip up the working time directive, too, if it does not fit with what they think should happen under the appropriate arrangements after Brexit.

I do not trust the Prime Minister and the Cabinet with these immense powers. One would expect me not to do so, but no parliamentarian should trust them with these powers. None of us knows who the next Prime Minister will be or who will be in the next Cabinet. This is about the powers in principle, not who is doing the job right now. Clause 9 is particularly disturbing; it should not even be in the Bill. We should be legislating separately for the withdrawal agreement. We should have a separate Bill—and, yes, it would need to provide for secondary legislation; we should not be doing it now, when we have no clue what the withdrawal agreement will be, when we have not had a vote to endorse the Government’s negotiating strategy—we do not even know what it is on a whole series of different areas—and when there is not even a statutory commitment to a vote on the withdrawal agreement.

We could start legislating later, in the summer perhaps when we have a bit more of a clue where on earth this is all going, or perhaps in the autumn when the withdrawal agreement supposedly will have been signed. Then we could put the exit date, which some Government Members are concerned about, into primary legislation and legislate without giving Ministers any more powers than is strictly necessary, rather than hand them unrestricted power to do the job.

[John Redwood]

Does the right hon. Lady not accept that the Government are conducting the negotiations? Parliament can say, “We like the result,” or “We don’t like the result,” but we cannot amend it; it is what the negotiation is.

[Yvette Cooper]

I am not comfortable with the right hon. Gentleman’s enthusiasm for giving the Government blank cheques. Even if he is happy to support the Government and let them do whatever they want on the negotiations, he should be deeply uneasy about giving Ministers unrestricted powers to implement the withdrawal agreement in whatever way they so choose.

The Prime Minister has no mandate to do it this way. To be fair, she asked for one—that is what the election was all about; it was about subverting the Cabinet, her party and this Parliament—but she did not get one. In fact, the Conservative party lost seats. We now have a hung Parliament, and it would be even more irresponsible for a hung Parliament to hand over such huge powers to the Executive than it would be in any other circumstances.

We do not need to legislate like this. This is about more than just Brexit. It is about the precedents we set. Many hon. Members have quoted precedents about different kinds of secondary legislation, but that only strengthens the argument: we should not be setting a precedent in Parliament that hands this stonking great lump of powers into Ministers’ hands without any safeguards. This is about who we are. It is about what kind of democracy Britain should be.

Even before the Brexit legislation, the former Lord Chief Justice warned about the steady diminishing of Parliament, about the handing over of power and control, year after year, to the Executive—to be fair, that includes previous Governments, not just this one—and about the number of statutory instruments and the fact that since 1950 Parliament has said no to only one in 10,000 of those laid before it.

Henry VIII’s Parliament had an excuse. The man had a habit of chopping off people’s heads. What is the excuse for this Parliament? How can we possibly, in this generation, allow ourselves to become the most supine Parliament in history by handing over powers on this scale? We sit in the Chamber and listen to maiden speeches with great respect because we all still think that there is something special about being sent here by our constituents—sent with the power of democracy; sent on the wings of all those many thousands of ballot papers folded up with the crosses by our names. We think that we have a responsibility to hold the Executive to account, and not to hand over to Ministers, in an unrestricted way, all the power given to us by our constituents to do what they like with. Yet that is what the Bill is doing.

History will judge us for the decisions that we make now, for the precedents that we set and the choices that we make. Six months ago, I voted for article 50 because I believe in democracy, but now it is that same faith in democracy that means I cannot vote for the Bill. Let us not choose to be the most supine Parliament in history. Let us be the parliamentary generation that stands up for Parliament: the generation that pursues the article 50 process, but does so in a way that holds Ministers to account.

[Several hon. Members rose—]