European Union (Withdrawal) Bill
John Bercow Excerpts
Tuesday 16th January 2018

(2 years, 1 month ago)

Commons Chamber
Read Full debate Bill Main Page
Attorney General
Kerry McCarthy Portrait Kerry McCarthy (Bristol East) (Lab) - Parliament Live - Hansard

I beg to move amendment 57, page 2, line 42, leave out clause 4.

This amendment is linked to NC19, which would aim to preserve, more comprehensively than the existing Clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972.

Mr Speaker Hansard

With this it will be convenient to discuss the following:

Amendment 4, in clause 5, page 3, line 23, leave out subsections (4) and (5) and insert—

“(4) Notwithstanding subsection (5), the Charter of Fundamental Rights continues to apply to retained EU law after exit day save as set out in subsections (5) and (5A) below and all references in the Charter to “the law of the Union” shall be deleted and replaced with “retained EU law”.

(5) The following provisions of the Charter shall not apply after exit day—

(a) the Preamble, and

(b) Title V.

(5A) Article 47 of the Charter shall apply after exit day as if it was drafted as follows—

“Right to a fair trial

“Everyone whose rights and freedoms guaranteed by retained EU law are violated is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

“Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”

(5B) With effect from exit day EU retained law, so far as it is possible to do so, must be interpreted consistently with the Charter.

(5C) With effect from exit day decisions, judgments, advisory opinions of the Court of Justice of the European Union must be taken into account when determining cases under the Charter.

(5D) With effect from exit day in relation to the rights conferred by the Charter with respect to retained EU law—

(a) section 4 of the Human Rights Act 1998 shall apply and the words “a Convention right” shall be replaced by “a Charter right” and all references to “primary legislation” shall be replaced by “retained EU law”,

(b) section 5 of the Human Rights Act 1998 shall apply,

(c) section 12 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of expression” shall be replaced by “the Charter right to freedom of expression and information”, and

(d) section 13 of the Human Rights Act 1998 shall apply and the words “the Convention right to freedom of thought, conscience and religion” shall be replaced by “the Charter right to freedom of thought, conscience and religion”.

(5E) With effect from exit day, any derogation or reservation made under sections 14 or 15 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.

(5F) With effect from exit day sections 16 or 17 of the Human Rights Act 1998 shall apply to rights under the Charter in the same manner as they apply to Convention rights.”

This amendment would retain the Charter Rights in UK law and afford them the same level as protection as the rights in the Human Rights Act.

Amendment 7, page 3, line 23, leave out subsections (4) and (5).

This amendment would allow the Charter of Fundamental Rights to continue to apply domestically in the interpretation and application of retained EU law.

Amendment 42, in clause 6, page 3, line 36, at end insert

“other than a matter referred to in paragraph 38 of the joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of the negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union dated 8 December 2017.”

This amendment would ensure that UK Courts and Tribunals can refer matters to the CJEU as agreed between the EU/UK negotiators in December 2017.

Amendment 55, page 3, line 36, at end insert—

“(1A) So far as it is possible to do so, retained EU law must be read and given effect in a way which allows it to operate effectively.”

This amendment (linked with Amendment 56) borrows language from the Human Rights Act 1998 to require courts and tribunals to interpret retained EU law, so far as possible, in order to overcome deficiencies in the operation of retained EU law which have not been dealt with using powers under clause 7.

Amendment 43, page 3, line 37, leave out subsection (2) and insert—

“(2) A court or tribunal may regard the decisions of the European Court made on or after exit day to be persuasive”

This amendment enables UK Courts and Tribunals to consider the decisions of the European Court to be persuasive.

New clause 7—EU Protocol on animal sentience—

“The obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Lisbon Treaty, shall be recognised and available in domestic law on and after exit day.”

This new clause transfers the EU Protocol on animal sentience set out in Article 13 of Title II of the 2009 Lisbon Treaty into UK law, so that the obligation on the Government and the devolved administrations to pay due regard to the welfare requirements of animals as sentient beings when formulating law and policy is not lost when the UK leaves the EU.

New clause 9—Saving of acquired rights: Anguilla—

“(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.

(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.

(3) In subsection (2) a reference to a power includes a power to make regulations.

(4) In this section an acquired right means a right that existed immediately before exit day—

(a) whereby a person from or established in Anguilla could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and

(b) whereby the right arose in the context of the United Kingdom’s membership of the European Union and Anguilla’s status as a territory for whose external relations the United Kingdom is responsible.

(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.”

The intention of this new clause is to mitigate the impact of Brexit on the British territory of Anguilla which is dependent on frictionless movement between Anguilla and adjacent French and Dutch possessions of St Martin/Sint Maarten that are EU territories.

New clause 13—Classification of retained EU law (No. 2)—

“(1) Any retained EU law that was a legislative act or implements a legislative act enacted under Article 289 of the Treaty on the Functioning of the European Union is deemed to be primary legislation on or after exit day.

(2) Any retained EU law that was a delegated act or implements a delegated act under Article 290 of the Treaty on the Functioning of the European Union or was an implementing act or implements an implementing act under Article 291 of the Treaty on the Functioning of the European Union is deemed to be a statutory instrument on or after exit day, unless that law is already enacted as an Act of Parliament.

(3) Any change to the preceding characterisation shall be by regulation which may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

This new clause would provide greater legal certainty by classifying retained EU law as either primary or secondary legislation.

New clause 16—Consequences of leaving the European Union: equality—

“(1) This section comes into force when this Act is passed.

(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.

(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.

(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—

(a) section 3 (interpretation of legislation);

(b) section 4 (declaration of incompatibility);

(c) section 5 (right of Crown to intervene);

(d) section 6 (acts of public authorities);

(e) section 7 (proceedings);

(f) section 8 (judicial remedies);

(g) section 9 (judicial acts);

(h) section 10 (power to take remedial action);

(i) section 11 (safeguard for existing human rights); and

(j) section 19 (statements of compatibility).

(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—

(a) the application of this section generally, and

(b) in particular, the meaning of discrimination for the purposes of this section.”

This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.

New clause 19—Saving for rights etc. under section 2(1) of the ECA (No. 2)—

“(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day are part of domestic law by virtue of section 2(1) of the European Communities Act 1972 continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations restrictions, remedies or procedures so far as they form part of domestic law by virtue of section 3

(3) Where, following the United Kingdom’s exit from the EU, retained EU law incorrectly or incompletely gives effect to any rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day, a Minister of the Crown shall make regulations for the purpose of giving effect to such rights, powers, liabilities, obligations, restrictions, remedies and procedures.

(4) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”

This new clause is linked to Amendment 57 to leave out Clause 4 and aims to preserve, more comprehensively than the existing clause 4, rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law and incorporated into domestic law via the European Communities Act 1972. Where such rights are incorrectly or incompletely transferred, it imposes a duty to make regulations to remedy the deficiency.

Amendment 40, in schedule 8, page 54, line 6, at end insert

“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”

This amendment is consequential on NC13.

Amendment 41, page 54, line 44, at end insert

“to which subsection (2) of section (Classification of retained EU law (Amendment2)) applies.”

This amendment is consequential on NC13.

Government amendments 37 and 38.

Kerry McCarthy Portrait Kerry McCarthy - Hansard
16 Jan 2018, 12:49 p.m.

Amendment 57, which would leave out clause 4, is linked to new clauses 19 and 21. Many of the amendments I tabled in Committee have been proposed by Greener UK, a coalition of many environmental organisations that are concerned about the possible impact of Brexit on environmental protections. They see it as one of the biggest threats: I know other people see it as an opportunity, especially when it comes to rejigging how we subsidise agriculture once we leave the common agricultural policy. The concern is what protections would remain, given the importance of our membership of the EU for everything from cleaning up water pollution and protecting biodiversity to improving recycling and reducing waste. It is hard to believe that we used to allow untreated sewage to flow into our seas before the EU’s bathing water directive forced the UK Government to make our bathing waters fit for swimming and to test for bacteria such as E. coli. In 1990, only 27% of our bathing waters met minimum mandatory standards; by 2014, 99% complied.

When the then Secretary of State for Environment, Food and Rural Affairs gave evidence to the Environmental Audit Committee’s inquiry on the natural environment after the EU referendum, she told the Committee that approximately a third of the more than 800 pieces of EU environmental legislation will be difficult to transpose into UK law. The Committee also identified a considerable governance gap, which the Government have acknowledged, and I support new clause 18, which would enshrine what the Government have said they want in relation to carrying over environmental principles and establishing a new environmental regulatory body.

My amendment addresses the substantial flaws, gaps and democratic deficit in the Bill that were not addressed in Committee, in particular to fully transpose current EU environmental legislation in all areas effectively into UK law to avoid any weakening or loss of existing environmental protection during Brexit. The Secretary of State for Environment, Food and Rural Affairs has been encouraging in saying that:

“We must not only maintain but enhance environmental standards as we leave the EU. And that means making sure we secure the environmental gains we have made while in the EU even as we use our new independence to aim even higher”.

Opposition Members share the same aspirations and visions, but we cannot just take his word for it. We need those promises written into the Bill and concrete measures to deliver on those aspirations. This has to last longer than he is in post.

Amendment 57 would leave out clause 4, with a view to replacing it with new clause 19 which would preserve—more comprehensively than clause 4—rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law. The new clause seeks only to properly realise the Government’s stated ambition for the Bill—they have repeatedly assured us of this during the process—that the same rules and laws will apply after we leave the EU as before.

In their White Paper, the Government sought to reassure us that this Bill will mean that

“the whole body of existing EU environmental law continues to have effect in UK law”.

The Prime Minister has promised:

“The same rules and laws will apply on the day after exit as on the day before”,

but that is simply not the case. As drafted, the Bill will not properly capture and convert all EU environmental law into stand-alone domestic law.

Clause 4 appears to deal with full transposition. In Committee, the then Minister of State for Courts and Justice described it as a sweeper provision that

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972.”—[Official Report, 15 November 2017; Vol. 631, c. 498.]

But it fails to do its sweeping properly, because some inexplicable and unnecessary restrictions in clause 4(l)(b) and (2)(b) mean that important aspects of environmental law will be lost. Those exceptions include rights that have not been recognised by a court before exit day. Effectively, the basic rights that everyone accepts but that have not been litigated on are at risk. Those rights have been hardwired into EU law and do not need enforcing, but once we no longer have the safety net of the EU, they could fall.

The Government’s defence of the limitations in these subsections in Committee was far from convincing. The Minister essentially argued that they were necessary because directives do not produce directly effective rights until they have been recognised as such by courts. However, if a provision in legislation creates directly effective law, it does not need a court to confirm that that is the case. If a piece of legislation creates a legal position, it does not need a judge to verify that that is the case. In fact, the Government have often not transposed certain provisions of directives on the basis that they function adequately directly from the directives without any need to transpose them into national law. That clearly demonstrates that there are parts of directives that currently form part of UK law that will be removed by subsection (2)(b).

Clause 4 does not adequately engage with failures to properly transpose EU law. An obligation should be placed on the Government to remedy incorrect and incomplete transposition. The powers to do so are contained in clause 7(2)(f), but there is a significant difference between a power to do something and a duty to use that power.

To summarise, amendment 57, in getting rid of clause 4 and replacing the linked new clause 19, seeks to rectify those errors. New clause 19 is simpler and more comprehensive than the existing clause 4. It would ensure that rights arising under EU directives are preserved and that a mechanism is in place after exit day to deal with problems arising from the incomplete or incorrect transposition of EU law before exit day.

If clause 4 is not amended, we could lose vital EU law provisions, including requirements to review and report on the adequacy and implementation of laws that are crucial to ensure the law is complied with and up to date. That includes the requirements contained in article 20 of the marine strategy framework directive, article 17 of the habitats directive and article 32 of the air quality directive. Without reported data under the latter, ClientEarth would not have been able to hold the Government to account through the courts on air pollution.

We will also lose obligations on the Government to report and send information to the European Commission, which is then able to aggregate it and use it for considering the appropriateness of laws and their implementation. On day 6 in Committee, I gave an example of how losing reporting requirements under article 10 of the birds directive could, for example, present a barrier to future investment in, and the roll-out of, marine renewable energy and other developments. The Government still have not said whether they intend these reporting requirements to disappear.

Without amendment, we will also see a loss of environmental standards and conditions. Some obligations on member states have not been transposed into UK law, such as article 9 of the water framework directive, which requires water pricing policies to provide adequate incentives for users to use water efficiently, or article 5 of the energy efficiency directive on energy performance requirements for publicly owned buildings. We have been promised a green Brexit, and we are told that leaving the EU will not threaten the health of people or nature, so why is there opposition to amending the Bill to make those promises legally binding?

Let me turn briefly to the other new clause tabled in my name. New clause 21 would ensure oversight of the transfer of functions from EU institutions to domestic institutions. It would do that by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions and to make regulations that ensure that all relevant environmental powers and functions are continued. The register would allow the public to monitor and hold the Government to account on their plans for robust arrangements to be in place on exit day to deliver their ambition for a world-leading environmental justice system. The new clause also reflects strong public concern that the environmental governance gap that would arise on leaving the EU is filled as quickly as possible.

To conclude, I am simply saying that if the Government want the Bill to match their stated intentions, they need to accept these provisions.

Break in Debate

Sir Bernard Jenkin Portrait Mr Bernard Jenkin (Harwich and North Essex) (Con) - Hansard
16 Jan 2018, 1:03 p.m.

I agree with my right hon. Friend the Member for Wokingham (John Redwood) that in the end, because we are a sovereign Parliament, we are the only guarantor of our people’s rights. However, I am interested in what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is saying about this matter, because the other danger that is lurking here is the fact that our courts may well decide that they have an obligation to maintain EU law even in the face of an Act of Parliament, and might strike down an Act of Parliament because, from reading the Bill, they see it as their obligation to retain certain principles of EU law. I like the declaration of incompatibility that my right hon. and learned Friend is suggesting as a very suitable compromise that enshrines what we have.

Mr Speaker Hansard
16 Jan 2018, 1:04 p.m.

Order. This, if I may say so to the hon. Gentleman, is a mini-speech, with more emphasis on the speech than on the mini.

Mr Grieve Hansard
16 Jan 2018, 1:05 p.m.

Thank you, Mr Speaker.

My hon. Friend makes a perfectly good point, which reinforces my impression that it is inadequate simply to say, “Because we are leaving we shall leave this to a later date.” I will return to that later.

We did actually, Mr Speaker, talk about this at some length in Committee. In Committee, as hon. Members may recall, I emphasised that one way out of this difficulty might be to move away from the charter and look at the general principles of EU law. We could allow them to continue to be invoked, in respect of retained EU law, which would include issues such as the laws which we have under the charter, until they were replaced. That seemed to me to be a stopgap. I emphasise that I put it forward as a stopgap—not as a long-term solution, but as a way of getting the Government off the hook of having to accept any part of the charter, because I know that one or two of my hon. Friends choke when they even mention that word. I have never shared that view—I think they should actually go and read the charter, because then they would realise it is rather a reasonable document. My suggestion provided a way forward, and my hon. and learned Friend the Solicitor General very kindly said that he would go away and give the matter some thought, the consequence of which was Government amendments 37 and 38.

I am sorry to start this Report stage with a bit of carping, because later I shall say some very nice things about the response of my hon. Friends on the Treasury Bench to some of the representations that I made to them in Committee. Some very good things indeed have been done, for which I am grateful—I will talk about those when we come to the right point—but I think that the response on this matter is, frankly, rather paltry. They have provided a mechanism by which for three months—the period in which it is possible to carry out judicial review—after the exit date it will be possible to invoke these rights, but not in a way that challenges any primary legislation. It is a minuscule change, but minuscule though it may be, it is actually a little wedge in the door, because it represents quite a major surrender or change of principle on the part of the Government towards this issue, and to that extent I am delighted to welcome it. Nevertheless, as I think the Solicitor General knows very well, the proposal is not what I was asking for. The problem is that although it starts to remedy the situation, it does not go anything like far enough, particularly when it is not linked to a wider statement from the Government about how they want to go ahead and deal with this.

I had to make a decision about whether to table a further amendment to put to the House on Report. Having rebelled—there is no other way to describe it— against the Government, because that was what I undoubtedly did on clause 9, and indeed incited some of my colleagues to join me in doing so, because I thought that clause 9 was so deficient, it is not my desire to cause further stir, in the harmonious atmosphere of early January, by doing that again if I can possibly avoid it. It crossed my mind that two things appeared to me to militate against doing it. The first is this.

I have to say to the Solicitor General that I do not think that the Bill will pass through the upper House without this issue being considered. It has nothing whatsoever to do with whether Brexit takes place; it has to do with the state of certainty of law in this country, which is a matter to which plenty in the other place are capable of applying their minds. I very much hope that when the Bill goes to the Lords, they will look at the amendment that the Government have tabled and understand its spirit—it is well-intentioned, so I must welcome it—but perhaps decide that it might be capable of a little bit of development. Or, indeed, they may apply their legal minds to this matter and come up with an alternative that does respect—I want to emphasise this—some of the reasons, which I understand, why the Government do not wish to entrench these laws after we have gone.

Break in Debate

Paul Blomfield Portrait Paul Blomfield (Sheffield Central) (Lab) - Hansard

As ever, it is a genuine privilege to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), whose integrity and honesty have shone through every day we have been debating this Bill.

Mr Speaker Hansard

Order. Forgive me. Before the hon. Gentleman gets under way—I think the Minister is keen to follow—I want to say that a number of Back Benchers wish to contribute. I am very keen that they be fully heard; I do not want the debate to be dominated by the Front Benchers, who I am sure will make succinct contributions.

Paul Blomfield Portrait Paul Blomfield - Hansard
16 Jan 2018, 1:20 p.m.

I will seek to live up to that expectation, Mr Speaker; I do not intend to speak for long.

Amendment 4 addresses one of the six key tests that we set out for the Bill before we could support it. Those tests were not set out simply on Second Reading or in Committee, but 10 months ago, when the White Paper outlining the Government’s approach was first published.

The tests drew support across the House, but sadly the Government have made no significant concessions. In Committee, a meaningful vote for Parliament on the final deal was secured, of course—but against the wishes of the Government and only by decision of the House. Our five amendments at this stage address those other tests: facilitating a transitional period; protecting the devolution settlement; protecting workers’ rights; reining in the Henry VIII powers; and, in amendment 4, retaining the EU charter of fundamental rights in UK law.

The objective of amendment 4, which would retain charter rights in UK law and afford them the same level of protection as those in the Human Rights Act, has wide support on both sides of the House. It is part of a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice jobs and the economy or rights and protections on the altar of ideology. It is a sensible approach for which I believe there is a majority across the House—one that goes well beyond those who voted for amendment 7 in Committee. It is also a consensus that I think is reflected in the other place, from which I suspect we might see the Bill return with some improvements, as the right hon. and learned Member for Beaconsfield indicated.

The Opposition support amendments 42 and 43, which would enable UK courts to continue to refer matters to the Court of Justice and to consider CJEU decision to be persuasive. As well as amendment 55, we also support new clause 13, amendments 40 and 41, on clarifying the status of retained law, and new clause 16 on enshrining equality rights, which stands in the name of my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous). We also support new clause 7 on animal sentience and new clause 9 on the acquired rights of Anguillans—an indication of the enormous complexity and range of the issues we face with Brexit. We accept that Government amendments 37 and 38 improve the Bill, but we fear that they do not go anywhere near far enough on legal challenges based on the general principles of EU law, which is why we prefer and support amendment 57, which was moved so ably by my hon. Friend the Member for Bristol East (Kerry McCarthy).

Amendment 4 addresses the concerns we raised in Committee around the charter of fundamental rights and provides an opportunity for the Government to think again. Human rights should not be a dividing line between parties in this House, so even at this stage we hope that the Government, either here or in the Lords, might accept our approach in the amendment and perhaps even accept the amendment today and avoid the vote that we will otherwise be seeking. As we said in Committee, the charter has been critical in developing, strengthening and modernising human rights in the UK. To abandon it risks reducing protections for UK citizens and leaving a gaping hole in our statute book.

The Government claim that the Bill is about legal continuity and certainty in what will become the new category of EU retained law, but all of that EU law is interpreted through the charter, so excluding it would leave our legal system inconsistent and incoherent. To avoid defeat on this issue in Committee the former Justice Minister, the hon. Member for Esher and Walton (Dominic Raab), committed to publishing a memorandum that he claimed would confirm the Government’s case that the charter was unnecessary by identifying where all of these rights could be found in EU retained law or existing domestic law.

Obviously that argument overlooked the main point of the charter, which was to bring all of these rights together in one codifying document, but as an Opposition we were willing to be helpful and awaited the memorandum with interest. We wanted to see a comprehensive document that identified not only the source of each right in the charter but—crucially—how the existing level of effective recourse would be guaranteed. The memorandum was published on 5 December, and it acknowledged that the Government envisaged all these rights being scattered back to their original sources. They are removing the material source of the rights, in the form of the charter, and leaving citizens with the formal source. Now that is a legal way of describing the problem, but I am not a lawyer. It means in effect that it will become more difficult for any UK citizen to assert their rights post-Brexit.

In their defence, the Government insisted that nothing would be lost if we dropped the charter because it created no new rights.

Break in Debate

Several hon. Members rose—

Mr Speaker Hansard
16 Jan 2018, 2:02 p.m.

Order. I will take Joanna Cherry next and then Mr Kenneth Clarke.

Joanna Cherry (Edinburgh South West) (SNP) - Hansard
16 Jan 2018, 1:59 p.m.

I rise to discuss amendment 7, which is in my name and those of my hon. Friends and other Members and relates to the charter of fundamental rights, and amendments 42 and 43, which are in my name, and to give support to amendment 55, which was tabled by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who will be addressing it in due course. The amendments raise issues relating to the protection of fundamental rights, about which we have already had quite a degree of discussion today, and to the justiciability of those rights and their legal certainty in this country and its jurisdictions after Brexit. The amendments tabled by the Scottish National party have the support of the Law Society of Scotland, and those that relate to the charter have widespread support, including from the Equality and Human Rights Commission. I am also interested in the wording of amendment 4, which was tabled by the official Opposition, and if I do not press my amendment, they can count on the SNP’s support should they press amendment 4 to a vote.

The questions raised by the amendments have all yet to be answered adequately by the Government. As the right hon. and learned Member for Beaconsfield (Mr Grieve) alluded to earlier in his erudite contribution, the Government’s approach to the detailed and widely held concerns about aspects of the Bill tends to be rather dismissive or deals with them airily and in generalities. At this stage, before the Bill goes to the other place, which is unaccountable and undemocratically elected, it is incumbent on the Government to address the questions about clauses 5 and 6 that were directed to them in Committee, rather than to continue to deal in the generalities that they have used so far.

The hon. Member for Hove (Peter Kyle), who is no longer in his place, made a valid point earlier. When we hear constant reassurances from Government Members that this Parliament could not possibly do anything to contravene fundamental rights, we do not need to look back very far into our history, or into the lifetimes of many in this House, to see a prolonged period when the rights of gay people were denigrated by a Conservative Government through the use of section 28.

Break in Debate

Several hon. Members rose—

Mr Speaker Hansard
16 Jan 2018, 3:10 p.m.

Order. Several colleagues are now seeking to catch my eye, but I emphasise that the Minister must also have a decent amount of time in which to respond. I therefore urge colleagues to be brief in their contributions, while of course covering what is necessary.

Caroline Lucas Portrait Caroline Lucas - Hansard
16 Jan 2018, 12:44 p.m.

I rise to speak to new clause 7, which is in my name and is supported by Opposition Members. I hope to push it to a vote. The new clause would transfer article 13 of the Lisbon treaty into UK law, so that the obligation on the Government and devolved Administrations to pay due regard to the welfare requirements of animals as sentient beings when formulating law and policy is not lost when the UK leaves the EU.

You will be glad to hear that I can be brief, Mr Speaker, because there is no need to set out again the case for transferring this obligation under EU law into domestic law. In Committee, the then Justice Minister, the hon. Member for Esher and Walton (Dominic Raab), rejected my similar new clause and, I would suggest, inadvertently misspoke in the House in the process by stating that the sentience obligation

“is already recognised as a matter of domestic law, primarily in the Animal Welfare Act 2006.”—[Official Report, 15 November 2017; Vol. 631, c. 499.]

That was simply incorrect, and there can be no disagreement about that because the Secretary of State for Environment, Food and Rural Affairs has since published a new draft Bill providing for the transfer into UK law of the obligation on animal sentience set out in article 13.

The Government therefore accept that they need to do what my new clause provides for, and the simplest thing would be for the Minister to accept it or, if the specific wording is considered deficient in some way, for him to bring forward a revised version as a Government amendment. As this has not yet happened—I will gladly give way to the Minister if he wants to say that the Government will accept the new clause—I can only assume he will say that the Bill is not the right legislative vehicle for the new clause: in other words, that a Bill to transfer the body of EU law into UK law is not the right legislative vehicle to transfer an important piece of EU law into UK law. To me, at least, that does not make sense.

Break in Debate

Several hon. Members rose—

Mr Speaker Hansard

I call Stuart C. McDonald—fairly briefly. The hon. Gentleman has amendments down and must be heard, but I know he will be sensitive to the importance of the Minister having adequate time to respond to all that has been said, so I am sure that he will be on his feet for only a small number of minutes.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) - Hansard

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

Break in Debate

Kerry McCarthy Portrait Kerry McCarthy - Hansard

I thank the Minister for praising me as a shining example on animal welfare, but that does not quite make up for my disappointment that he has failed to address the issues in my amendments. I therefore seek to press amendment 57 to a vote.

Mr Speaker Hansard

The hon. Lady had 10 seconds, and she has been indulged very modestly.

Joanna Cherry - Hansard

I beg to move amendment 49, page 17, line 13, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Mr Speaker Hansard

With this it will be convenient to discuss the following:

Amendment 50, page 17, line 18, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendments 21 to 27.

Amendment 51, page 22, line 39, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 52, page 22, line 43, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 28.

Amendment 53, page 25, line 12, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 54, page 25, line 16, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 29.

Amendment 3, in clause 11, page 7, line 23, leave out subsections (1) to (3) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.

(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law, omit “is incompatible with EU law”.

(4) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(5) UK-wide frameworks shall be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market,

(b) ensure compliance with international obligations,

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties,

(d) enable the management of common resources,

(e) administer and provide access to justice in cases with a cross-border element, or

(f) safeguard the security of the UK.

(6) Ministers of the Crown shall create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations.”

This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters and creates new collaborative procedures for the creation of UK-wide frameworks for retained EU law.

Amendment 6, page 7, line 23, leave out subsections (1) and (2) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.”

This amendment would replace the Bill’s changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.

Amendment 13, page 7, line 23, leave out subsections (1) to (3) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit “or with EU law”.

(2) In section 108A (2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit “or with EU law”.

(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law), omit “is incompatible with EU law”.

(3A) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(3B) UK-wide frameworks will be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market, while acknowledging policy divergence;

(b) ensure compliance with international obligations;

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;

(d) enable the management of common resources;

(e) administer and provide access to justice in cases with a cross-border element; or

(f) safeguard the security of the UK.

(3C) Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore—

(a) be based on established conventions and practices, including that the competence of the devolved institutions will not be adjusted without their consent;

(b) maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; and

(c) lead to a significant increase in decision-making powers for the devolved administrations.

(3D) Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland by—

(a) recognising that Northern Ireland will be the only part of the UK that shares a land frontier with the EU; and

(b) adhering to the Belfast Agreement.

(3E) UK-wide frameworks will be created jointly by the sitting devolved administrations and Ministers of the Crown, with the agreement of all parties involved.”

This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters and creates a new collaborative procedure for the creation of UK-wide frameworks for retained EU law using the principles as agreed at the Joint Ministerial Committee (EU Negotiations) on 16 October 2017.

Amendment 44, in clause 7, page 5, line 7, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations under Clause 7 when it is necessary to do so.

Amendment 5, page 6, line 18, after “it”, insert—

“( ) modify the Scotland Act 1998 or the Government of Wales Act 2006,”.

This amendment would prevent the powers of a Minister of the Crown under Clause 7 of the Bill to fix problems in retained EU law from being exercised to amend the Scotland Act 1998 or the Government of Wales Act 2006.

Amendment 45, in clause 8, page 6, line 33, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 46, in clause 9, page 7, line 3, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 47, in clause 17, page 14, line 15, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 48, page 14, line 22, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 11, in clause 19, page 15, line 11, at beginning insert—

“(1) Subject to subsection (1A)”.

This amendment is consequential to Amendment 12 to Clause 19 that requires legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Amendment 12, page 15, line 18, at end insert—

“(1A) None of the provisions in this Act may come into force until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly, signifying consent to the Act unless—

(a) direct rule is in place;

(b) the devolved administration has been formally suspended; or

(c) if the devolved administration has been dissolved for reasons other than recess or an election.”

This amendment requires the Prime Minister to gain legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Government amendments 14 to 20, 30 to 32 and 34.

Joanna Cherry - Hansard

The amendments I have tabled go to the heart of concerns that many Members have about the wide powers afforded to the Executive by clause 9, schedule 2 and other parts of the Bill in relation to secondary legislation. The purpose of my amendments is to ensure that Ministers can only bring forward regulations under clause 7 and the like when it is “necessary” to do so, rather than when it is “appropriate”. The word “appropriate” is too wide.

These issues were discussed in Committee, but—surprise, surprise—it was very difficult to get a straight answer from Ministers about why they were so wedded to the word “appropriate” and were not interested in changing it to the word “necessary”, as supported by many organisations including Justice and the Law Society of Scotland. The change would also reflect judicial concerns about the breadth of discretion that the judiciary would be given if they had to determine whether something was “appropriate” rather than “necessary”. This will be subject to judicial review because we are talking about secondary legislation. I tried in vain in Committee to get the Minister to say what was meant by “appropriate”. He referred me to the dictionary definition, but that is simply not good enough.

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Dr Philippa Whitford Portrait Dr Whitford - Hansard

Did the hon. Gentleman watch the programme? The entire session was about Brexit. Andrew Marr asked the First Minister about independence—she was asked by someone else. You have just spent about five minutes talking about it, but suddenly it is the SNP banging on about it.

Mr Speaker Hansard

I have done no such thing. I have been a very good boy!

Ross Thomson Hansard

I was not talking about the questions asked but about the answer given. That is the broken record. The First Minister has always had the opportunity to accept the result of 2014. She never has and she never will. That is why independence transcends everything else for the SNP. It does not speak in the national interest, but only ever in the nationalist interest.

To conclude, powers will come back from Europe and will be exercised directly in Scotland by the Scottish Parliament and Scottish Government Ministers. I know that the Scottish Government do not have a great track record when it comes to managing things in Scotland, so I understand their trepidation about any other powers going to the First Minister. That is no doubt why they want to keep all those powers in Brussels.

At least those of us on the Government side actually want devolution—not the kind of crazy centralisation that we have seen from the SNP. That is the hallmark of its Government and of the party here. That is why on this side we will stand up for Scotland and deliver for Scotland.

Break in Debate

Stephen Gethins Hansard
16 Jan 2018, 6:40 p.m.

As usual, my hon. Friend makes a very good point.

I want to make it clear that the points I make about the House of Lords have no bearing on its Members’ personal characteristics. Rather, I am referring to the anti-democratic situation in which we find ourselves. I presume that we are now in a situation in which a Scotland Office Minister, appointed after losing an election, will debate these matters with Lords who are there by accident of birth or as a result of political patronage, and that this will happen after Third Reading. That is absolutely shameful. It should shame everyone involved. “Bring back democracy”, Vote Leave supporters cried. “Return our independence”, they cried. They also cried, “Bring back our blue passports”, even though they could have had those all along. After this, we can even have commemorative stamps. Does no one see the irony for democracy? I know that the Speaker wants me to make some progress on this—

Mr Speaker Hansard

Order. That is rather an understatement. I am looking for an opportunity for the Minister to reply to the debate, so I am sure that the hon. Gentleman will be approaching his peroration ere long.

Stephen Gethins Hansard
16 Jan 2018, 6:40 p.m.

I will. I know that the Minister wants to respond and pick up on some of the points that have been raised, but as I represent the governing party of Scotland, I would also like to make some points on where we are with this—

Mr Speaker Hansard

Order. I say with due courtesy, but absolute insistence, to the hon. Gentleman that the Minister will rise to speak no later than 6.45. That is not advice; I am telling the hon. Gentleman that that is the situation.

Stephen Gethins Hansard
16 Jan 2018, 6:41 p.m.

I should like to thank the Speaker for his guidance on that—

Mr Speaker Hansard

Order. Sorry, that was not guidance. That is a ruling. End of subject.

Stephen Gethins Hansard
16 Jan 2018, 6:41 p.m.

Thank you, Mr Speaker.

Let me make these points. What accountability is there on the promises that were made during the EU referendum? The Secretary of State for Scotland told us that we would have a “powers bonanza”, but there has been nothing. The Environment Secretary said that we would get powers over immigration, but there has been no accountability over that. The Foreign Secretary said that there would be £350 million for the NHS, and quite remarkably, he doubled down on that last night. No shame whatever. Is it any wonder that the latest NatCen survey shows that, rather than 59% of people in Scotland thinking that the Government are handling this badly, the figure has shot up to 67%? The hon. Member for Stirling (Stephen Kerr) mentioned this earlier.

Let us compare that to the attitude of the Scottish Government on this. The amendments that have gone down have been drafted by their working with colleagues from across this House and across the Administrations. We published our amendments in due time. Even yesterday, the Scottish Government used the economists that they have at their disposal to publish—not keep secret—their analysis of Scotland’s place in Europe. It showed an 8.5% loss in GDP, equating to £2,500 for every person in Scotland, through losing the value of EU nationals. Leaving the single market will be devastating. On this, I make a gentle point to our Labour colleagues, many of whom have stuck out their neck on the single market. This Government are on the ropes and we could have a majority that could achieve a sensible outcome. I urge my colleagues on the Labour Benches to reconsider some of their options on this. We can stay in the single market.

In conclusion, compromises can be reached but we must see the amendments. All of this is happening even though we were told that the only way to stay in the EU was to vote no. Two thousand years ago, the first Scot in recorded history, Calgacus, was said to have told his followers about the Romans:

“They are the only people on earth to covet wealth and poverty with equal craving. They plunder, they butcher, they ravish, and call it by the…name of ‘empire’.”

As we leave the European Union, we have nothing on clause 11, nothing on the rights of EU citizens, nothing about what will happen to our trade, and nothing on the opportunities for young people. That leads me to conclude that the only plan that the Brexiteers have is to create a desert and call it Brexit.