European Union (Withdrawal) Bill
Seema Malhotra Excerpts
Monday 11th September 2017

(2 years, 5 months ago)

Commons Chamber
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Ministry of Justice
Mr Simon Clarke Portrait Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con) - Hansard
11 Sep 2017, 6:15 p.m.

In an excellent speech on Thursday, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) referred to the fact that we are sent here on the wings of ballot papers sent in by our constituents. That is a precious right, and I agree with her that it is one that we should observe and uphold. I was sent here with a very clear message from my constituents, who on 23 June 2016 voted decisively to leave the European Union. They did so, contrary to what the hon. Member for Brighton, Pavilion (Caroline Lucas) says, in full knowledge of what that entailed: self-government over federalism, democracy over bureaucracy, and economic liberalism over protectionism. It is important to note, of course, that the third of my voters who voted to remain have accepted the result, and now simply wish for our departure from the EU to be as smooth and orderly as possible. That is why we need this Bill. Indeed, it is not an exaggeration to say that we cannot have that without this Bill.

So let us be clear about the Bill’s function. This is not a Bill about whether we stay in or leave the EU; that decision was taken by our bosses, the British people, last year. Likewise, it is not a Bill about the substance of the withdrawal agreement; that is a matter for ongoing negotiation between Ministers and Brussels. The primary purpose of the Bill is simply to provide the legal continuity and certainty on exit day that I think all of us want.

To be clear, we have to do this. The House of Commons Library states that once the European Communities Act is repealed on exit day, without the legislative measures proposed in this Bill,

“huge holes would open up within the statute book”.

The Opposition talk a good game about Henry VIII and power grabs, but the Secretary of State was crystal clear on Thursday that the Bill will not be used to make material changes, and he made welcome commitments that he will consider sensible suggestions at Committee stage, and that is the point—this will happen in Committee.

If we vote down this Bill this evening, as Opposition Members want to do, we will be torpedoing the whole principle of the Bill, not the substance of the individual suggestions in it. We will be preventing the very chance of making the amendments that people want to see. It is hard to avoid the feeling that for some Members this is less about parliamentary scrutiny and more about parliamentary sophistry—that is to say, frustrating our best chance of making a success of Brexit. That is something I passionately believe in, although I accept some do not. The point is that we are all in this together, so we need to make this work. I put it to Members who represent seats that voted heavily to leave that they should reflect, as I have, on what message we would send out if we set about obfuscating their clearly expressed will in any way.

The right hon. Member for Don Valley (Caroline Flint) made a powerful speech earlier, joining those given by the hon. Members for Blackley and Broughton (Graham Stringer) and for Vauxhall (Kate Hoey) and the right hon. Member for Birkenhead (Frank Field). They understand the nature of the mandate we have been given. This is an extraordinary, once-in-a-generation moment, and I think it crosses party lines. People on Teesside, every single constituency of which voted to leave the EU, will be astonished that I am the only Member from that region who is going to be voting tonight for what they asked for.

I want to conclude by re-emphasising the calamitous consequences of our exiting the EU without the necessary legal provisions in place. Without this Bill, we will wake on the morning of exit day to find that thousands of our laws have changed or been rendered inoperative. The fallout from that scenario will make “cliff edge” sound euphemistic. With that in mind, voting against the Bill tonight will be interpreted by many as a vote to punish the British people for having had the audacity to vote for Brexit, for that is exactly what it will do.

Seema Malhotra Portrait Seema Malhotra (Feltham and Heston) (Lab/Co-op) - Hansard

I am grateful for the chance to contribute to this debate. I look forward to re-joining the Exiting the European Union Committee, whose important work will finally recommence this week.

I will vote tonight for Labour’s reasoned amendment and against the Second Reading of the Bill, not to frustrate Brexit, but because I believe that Parliament and the country must not be side-lined in how we move forward. The Bill has clearly been written without thought to its implications. As it stands, it sets a precedent that our democracy, or any other, should not allow. Ministers would be able to amend primary legislation—the Bill and other Acts—without needing a debate or vote in this House. Ministers could remove rights and protections through secondary legislation without any meaningful or guaranteed parliamentary scrutiny.

Many excellent points on the scope, scrutiny, transparency and accountability of the powers in the Bill have already been made, especially by my right hon. Friend the Member for Derby South (Margaret Beckett). I want to focus the detail of my remarks on one specific issue of concern, on which I would be grateful for the Minister’s response.

Once upon a time, before the general election, there was a lot of stirring rhetoric from the Prime Minister about how no deal would be better than a bad deal. These days, we hear less public talk of no deal, but the Bill nurses one hangover from when the Prime Minister could still pretend she had a mandate for her vision of what Brexit means. We do not have to look very far to find it. It is in clause 1, which states:

“The European Communities Act 1972 is repealed on exit day.”

“Exit day” is defined as

“such day as a Minister of the Crown may by regulations appoint”.

Now stand back. What clause 1 proposes is that any Minister can decide when our membership of the EU ends.

On any day, if the Prime Minister or Foreign Secretary decided, the Executive could withdraw from talks and decide to make hard Brexit a reality by repealing the European Communities Act, without a proper debate and without a full vote of this House. Clause 1 appears to put perhaps the most important power in the Bill—the power to repeal the European Communities Act—entirely into the hands of any Minister at a time of their choosing and whether or not there is continuity of our laws at that time.

Exit day is not even defined as being, at the earliest, 29 March 2019. There appears to be no parliamentary supervision over that power. It would appear that Parliament does not need to approve the regulations. Parliament does not even get to see them in advance. Hon. Members will have their own views about the wisdom of Ministers having that power. For my own part, I find it hard to see how giving an unfettered power to any Minister—especially a Conservative Minister—is what Parliament taking back control looks like.

There is no need for Parliament to be cut out of that decision. If our talks with the EU produce a deal, it will need to be approved by the other member states and the European Parliament before the cut-off date of March 2019. So there will be ample time for Parliament to choose to accept it, and consequently for the UK to see the repeal of the 1972 Act on what most assume will be exit day—29 March 2019. But if our talks with the EU break down, it must be for Parliament and not Ministers to determine our response. Parliament may decide to repeal the 1972 Act anyway, or it may say that no deal will have calamitous consequences—crashing over the cliff is a long way from the sunlit uplands promised to the electorate.

Either way, what is important is that it is Parliament, not a Minister, who chooses how to respond. That is why Labour’s manifesto promised voters a meaningful choice. The question of what action we should take if talks break down is for Parliament to answer. The power for Ministers to exit with no deal should not be in the Bill. I will vote against a Bill containing this unfettered clause 1, and I hope for some words of reassurance from the Government on that today.

The vote tonight is not about whether we leave the European Union, it is about how we do so. For want of a better phrase, the Bill is little short of a dog’s Brexit. Parliament and the country deserve better.

Dr Sarah Wollaston (Totnes) (Con) Hansard
11 Sep 2017, 6:30 p.m.

Without the Bill we cannot respect the will of the British people, as expressed in the referendum, and repeal the European Communities Act 1972. Without the Bill, as many Members have pointed out, we will see legal chaos. Given the sheer volume and complexity of the EU law that will have to be converted into UK law, I accept that the Government will need relatively wide delegated powers to amend legislation, but there is a distinction between necessary amendments as a consequence of our leaving the EU, many of which will be technical and minor, and those that implement entirely new policies.

The delegated powers in the Bill will touch every aspect of our lives, as many colleagues have said—their use could be unprecedented in scale, scope and constitutional significance—so I am glad to hear that Ministers are in listening mode. I will support the Bill tonight in the expectation that it will be amended in Committee and that there will be support for reforming the way delegated legislation is handled, so that Parliament, rather than the Government, can decide the appropriate level of scrutiny. Without that, we simply will not be able to bring control back to Parliament.

It may be useful to those who are following the debate from outside this place if I explain how delegated legislation works and why it is important that we amend it. I was first introduced to Delegated Legislation Committees when I was appointed to one dealing with draft double taxation relief and international tax enforcement orders. I thought there must have been a horrible mistake, so I sent a note to the Whip to ask about my duties. I received the following three instructions: “Turn up on time, say nothing and vote with the Government.”

People might argue that no one died as a result of my ignorance of international law on double taxation relief in Oman and Singapore, but what makes the system so absurd is that the very next Committee due to sit was a Delegated Legislation Committee examining the draft Medical Profession (Responsible Officers) Regulations 2010. It might be argued that, as someone who had just come to the House having been teaching junior doctors and medical students and having been an examiner for the Royal College of General Practitioners with an interest in doctors who were failing, I was better placed to be on the second Committee. It seems to me that there is an expectation that Members should not have any expertise at all. I think the general public would find that absolutely extraordinary; they expect Members to be able genuinely to scrutinise legislation.

There are many other reasons why the procedures should change. It is a great concern to people outside this place that many statutory instruments are subject to the negative procedure rather than the affirmative procedure and do not get any scrutiny at all—not even the current defective scrutiny. The power to change that does not necessarily need to come from legislation; we could use the Standing Orders. I commend the Hansard Society for the excellent work it did in advance of the Bill to set out how the procedures could be amended. Even though it is in our power as a House to put in place Standing Orders, for example to set up a Delegated Legislation Committee with the powers of sift and scrutiny that we have discussed today, it would help if Ministers indicated that they are in listening mode about that, too, and that they would support it happening over time.

I genuinely feel that the Government do not want to obstruct sensible debate. All Members from across the House should work with Ministers to put in place something that genuinely works. We know that delegated legislation needs reform even without this Bill, so let use this as an opportunity. As we have heard, up to a thousand statutory instruments will be coming before the House, and we need the House to decide whether the procedure will be negative or affirmative. We need reform so that we can genuinely develop expertise along the lines suggested by the Hansard Society and so that MPs with a genuine interest scrutinise the proposals.

The point is that a delegated legislation Select Committee could have the power to send a statutory instrument to a Committee of the whole House—not just a small Delegated Legislation Committee in a Committee Room, but with all of us here, similar to what we are doing today. It could also have the power to suggest sensible amendments that the Government would have to take away and consider. I have said that I will support the Government tonight, but I do so only in the expectation that they will support sensible amendments.