European Union (Withdrawal) Bill

Brendan O'Hara Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Stephen Kerr]

The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.

To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—

[Brendan O'Hara (Argyll and Bute) (SNP)]

On a point of order, Mr Speaker.

[Mr Speaker]

Order. I hope it is genuinely a point of order, rather than one of frustration from the hon. Gentleman.

[Brendan O'Hara]

I merely ask for guidance on the relevance of the hon. Gentleman’s speech on greenbelt and the Scottish Government to the topic of debate.

[Mr Speaker]

If the speech had been disorderly, I would have ruled as such, but it wasn’t, so I didn’t.

European Union (Withdrawal) Bill

Brendan O'Hara Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Cox]

It does make sense, because all that does is restore us to a position pre 2009 in the European Union. The general principles will still apply. There is no inconsistency by allowing the general principles—subject to amendments, which I am not speaking on; I have some sympathy with the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield —but I am convinced that incorporating the charter would be wrong and unwise. As a matter of policy, I urge my right hon. and hon. Friends and Opposition Members not to vote for that.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I rise to participate in this debate as something of a rarity: a non-lawyer. I will try to keep my comments within the allotted time of between 10 and 12 minutes.

I wish to follow the compelling and intelligent case made by the right hon. Member for East Ham (Stephen Timms), and I am delighted to speak in support of his amendment 151, which highlights, in particular, the consequences facing millions of British citizens and thousands of companies if the UK’s data protection legislation cannot be reconciled with EU law post Brexit. If clause 5 is passed unamended, and should the UK crash out of the EU on 29 March 2019 without a deal, I fear that the UK will find itself non-compliant with EU law and the charter of fundamental rights, and that therefore the framework that affords us the unencumbered free flow of data—not just within the EU, but with the safe nations with which the EU has reciprocal deals, including the United States—will immediately be under threat.

The consequences for the businesses and individuals who rely every day on that free flow of data across international boundaries—a free flow that needs to occur safely and without delay, cost or detriment—are unthinkable. As the Software Alliance said in its recent report,

“The benefits of cross-border data transfers are vital, not only for the technology sector but also for financial services, manufacturing, retail, healthcare, energy and most other sectors”.

The Data Protection Bill impact assessment, published last month, recognised the huge economic importance of the UK being able to guarantee effective unrestricted data flow and predicted that being at the forefront of data innovation could benefit the UK economy by up to £240 billion by 2020. Despite the warnings of businesses and their own impact assessment, however, the Government, in implementing clauses 5 and 6, seem determined to make the UK some kind of digital island, cut off from the rest of the global digital economy.

One would have thought, at a time of so many data breaches and cyber-attacks, that ongoing data co-operation with our European partners and others was not just desirable but essential post-Brexit. If creating a digital island is not the Government’s aim, I strongly suggest they make securing a workable compliant data protection deal with the EU one of their main priorities. It is not enough for them simply to assume that we will attain the status of adequacy by default—because we will have implemented general data protection regulations—or that, come what may, the minute we leave the EU our data protection laws will automatically be harmonised with the EU’s. That is simply not the case.

As we heard from the hon. Member for Nottingham East (Mr Leslie), the right hon. Member for East Ham and others, the European Court of Justice has already ruled, in both the Watson and Tele2 cases, that the implementing of a GDPR simply is not enough automatically to secure an adequacy by default agreement from the EU. The only avenue I can see for the Government, therefore, if they wish to achieve adequacy by default status, which they claim to desire, is to secure a deal with the EU that complies with European law before we leave. To do that, we would require a transitional period, during which we could negotiate a deal while remaining inside the single market and customs union and under the jurisdiction of the ECJ. That is one way for the Government to find time to negotiate the adequacy by default status. Of course, the other, and much more straightforward, option would be for the Government to commit to the UK remaining inside the single market and customs union and under the jurisdiction of the ECJ, given that no one in the UK ever voted to leave the single market or the customs union.

To be clear, the consequences of the UK crashing out of the EU without a deal would be catastrophic, particularly for businesses in the telecommunications and financial sectors, which are heavily reliant—almost entirely dependent—on the unrestricted free flow of data. The right hon. Member for East Ham detailed the importance of data to the UK economy. In the decade to 2015, the amount of cross-border data flow increased twenty-eightfold in the UK, and currently digital and data-intensive sectors of the economy account for 16% of UK output and 24% of our total exports. But as the clock ticks down to Brexit, I know that businesses that rely on the free flow of data are becoming increasingly concerned. They need to know now what is happening: they cannot plan for the future simply on the basis of a vague Government promise that somehow it will be all right on the night. I fear that, if they do not have guarantees about exactly what is happening well ahead of Brexit, they will vote with their feet and leave, like the European Medicines Agency, which announced last night that it was moving 900 high-tech, high-value jobs from London to Amsterdam.

Businesses cannot afford the risk of finding themselves outside the EU data protection area, and they cannot and will not wait until the last minute to find out what is happening. That is not commercially viable. Contracts would have to be rewritten and bills renegotiated, and things like that do not happen overnight. I fear that, if there is no agreement on an issue as fundamental as data protection, many large, high-net-worth companies which provide high-value jobs will begin to seek the stability that they need outside the United Kingdom.

As I said earlier, I seriously question whether maintaining a frictionless cross-border data flow is attracting enough of the Government’s attention during their Brexit negotiations. My alarm bells began ringing a number of weeks ago, when the Minister for Digital told the House that the Government were seeking “something akin” to an adequacy agreement. I had absolutely no idea what he meant then, and I am no closer to understanding now. “Something akin” to an adequacy agreement simply does not exist. An adequacy agreement is a formal legal position. It cannot be bent, moulded, or used as a quick fix to get a country, or a Minister, out of a sticky situation. The leading data protection lawyer Rosemary Jay said of adequacy agreements that the EU

“has to go through a legislative process. It is not simply within its gift to do it in some informal way”.

EU law is very clear: an adequacy decision can only be given to a “third country”— a country that is outside the EU and the European economic area—to allow it to operate securely and freely within the framework of the general data protection regulation, and an adequacy decision can only be given to a third country that meets the European Union’s high standard of data protection and whose domestic legislation is deemed compatible with the European Union’s charter of fundamental rights. The most obvious difficulty is that an adequacy decision is designed for third countries. The UK is not—yet—a third country, and it will not be a third country until the very end of the Brexit process.

There is a whole lot more to be considered. I cannot see how, without negotiating and securing a deal before leaving the EU, the UK can qualify for any sort of adequacy agreement, whether by default or otherwise. Even if the Prime Minister does secure a transitional period and is given time to sort out the UK’s adequacy problems, there is still no guarantee that adequacy by default will be achieved, because before granting an adequacy decision to a third country, the European Commission is obliged to consider a variety of issues such as the rule of law, respect for human rights and legislation on national security, public security and criminal law. That means that any deal that we reach with the EU will have to require at least a complete reworking—and, at best, a complete ditching—of the UK’s Investigatory Powers Act. In its present form, the Act leaves UK law incompatible with the charter of fundamental rights, which, as we have often heard, includes a chapter on the fundamental right to data protection.

On that basis alone, I am almost certain that the Act, which has already been accused of violating EU fundamental rights, will seriously call into question the UK’s ability to receive a positive adequacy decision. Eduardo Ustaran, a respected and internationally recognised expert on data protection, has said:

“What the UK needs to do is convince the Commission—and perhaps one day the European Court of Justice—that the Investigatory Powers Act is compatible with fundamental rights. That’s a tall order”.

The Government are understandably desperate to secure an adequacy decision by default or otherwise, but the harsh reality is that, at the very least, a lengthy and challenging legal process will almost certainly have to be undertaken before that can happen. That is why it is essential that the Government first secure the transitional period to keep the UK within the single market, the customs union and the jurisdiction of the European Court of Justice. We have to redraft the Investigatory Powers Act to make it comply with the charter of fundamental rights—if that is even possible, given the current form of the Act. Should that not happen, we will crash out of the European Union without a data protection deal, with all the devastating consequences that that would have for individuals and businesses.

European Union (Withdrawal) Bill

Brendan O'Hara Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Drew Hendry]

My hon. Friend has made a good point. It is important for us to be aware that there are forces that would like power to be taken away from Scotland.

Clause 11 was drafted by people with no understanding of devolution law. It is a midden in its current form. There are questions about the mechanisms that will result from it. Surely, if the Prime Minister’s “union of equals” statement is correct, frameworks should be agreed, not imposed. If, as the Minister said earlier, this is a temporary situation, why should it not lie with the Scottish Government to take that power temporarily until the frameworks are agreed? Our amendment 72 ensures that the devolved legislature would give consent to those appropriate areas in clause 11 before it comes into effect.

As we have heard, the fact that there are 111 powers demonstrates the scowth of the issues at stake. As things stand, however, UK Ministers could simply make changes to important policy areas without the formal consent of the Scottish Government or the Welsh Government, or the Scottish Parliament or the Welsh Assembly.

We are told to trust that a deal will be done—that we can expect this to happen—but I think people were expecting something to happen today, yet that deal did not happen. How can we have confidence that things will be done and a deal will be delivered when Arlene Foster can just pick up the phone and say, “No, we don’t like that”?

There are 111 areas covering a massive range of Scottish life: fishing, farming, law, data sharing, aircraft noise, pesticides, fracking, flooding, water quality, food, forestry, organs, blood safety—as my hon. Friend the Member for Edinburgh East (Tommy Sheppard) pointed out earlier—land use, railways, renewables and victims’ rights.

It is clear that those at the top of the profession in legal circles believe clause 11 is drafted without an understanding of devolution law. As Professor Alan Page put it:

“Not only does the Bill propose a massive increase in the power of UK Ministers to legislate in the devolved areas, it also proposes that their exercise should not be subject to any form of Scottish parliamentary oversight or control. What is proposed therefore is a law-making system fundamentally at odds with two of the key principles on which the devolution settlement is based.”

He was not the only one. Professor Rick Rawlings noted:

“The sooner clause 11 of the Withdrawal Bill is cast aside, the better. Constitutionally maladroit, it warps the dialogue about the role and place of the domestic market concept post-Brexit.”

On clause 11, even the Law Society of England and Wales has called for discussions about where the common frameworks will remain and their scrutiny. Professor Alan Page said that

“the real purpose of Clause 11 is not to secure legal continuity but to strip the devolved institutions of any bargaining power that they might have when it comes to the discussion of common frameworks and all the rest.”

We welcome the fact that there will be discussion over devolved areas of responsibility; consultation, however, does not satisfy the needs of devolution, and the UK Government should seek consent from the Scottish Government before exercising delegated powers in devolved areas, and the same goes for Wales and Northern Ireland. People’s jobs, businesses and farms, their environment at sea, in the air, above ground and below ground, virtual lives and literal lives, justice we depend on, and even the blood in our veins: tonight we must vote to uphold the rights of people across the nations and ensure that power is not taken from them.

[Brendan O'Hara (Argyll and Bute) (SNP)]

I begin by echoing the words of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), because clause 11 is an unashamed power grab; it is undermining the devolution settlement, and it drives a coach and horses through devolution across these islands. In the time that I have to speak, I will talk about the impact it will have on farming, particularly in my Argyll and Bute community.

It is generally accepted that Scottish farmers, particularly farmers and crofters working the land on the west coast, face vastly different challenges from farmers in the rest of the UK. Not only do Scottish hill farmers toil with some of the poorest land, but they face additional challenges from climate, geography and topography, and so much so that 85% of Scottish agricultural land is classed “a less favoured area” compared with just 17% of English agricultural land.

Given that Scottish farmers face specific challenges, surely it stands to reason that they need a bespoke solution that recognises the vast differences that exist across these islands. It is understandable that the Scottish Government and the Scottish farming community are demanding confirmation that all powers relating to agriculture post-Brexit will automatically be passed to the relevant legislature—in this case, the Scottish Parliament. I fear that this Government are taking us down a dangerous road. They are deliberately proposing fundamentally to alter the basic principles of devolution.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

The hon. Gentleman has mentioned the word “road”, which prompts me to intervene on him. When the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and I—and indeed the hon. Member for Argyll and Bute (Brendan O’Hara)—drive to the west, we see big signs telling us that the road was built with the assistance of the EU. One of the biggest questions in the minds of my constituents is: what will replace that funding stream? This relates to the ability of farmers and crofters to access their beasts.

[Brendan O’Hara]

The hon. Gentleman is absolutely right. This is why my constituency, his constituency and the constituency of my right hon. Friend the Member for Ross, Skye and Lochaber all voted to remain in the European Union. As things stand, all the powers connected to agriculture will go to London post-Brexit. It will be London that decides what happens.

[Ian Blackford]

My hon. Friend is making a first-class contribution to the debate. I declare an interest as a crofter. Is it not the case that the UK Government have form on this? When they were given convergence uplift money in 2013, there was a distinct intention that 86% of those funds should come to Scotland, yet they have given us only 16%. The Secretary of State for Environment, Food and Rural Affairs, who is sitting on the Front Bench, made sure that Scotland did not get what it should have done. We have been short-changed by Westminster. It is little surprise that we do not trust Westminster to look after us in this regard.

[Brendan O’Hara]

I thank my right hon. Friend for that intervention. I will touch on that issue in a moment.

Let us be clear that this is not just an SNP argument. The National Farmers Union of Scotland has made it absolutely clear that any move to impose what it describes as “DEFRA-centric policy” is completely unacceptable to Scotland. I agree wholeheartedly with the union when it states:

“The Scottish Government must retain the ability to manage, support and implement schemes, policies and regulations as it currently does”.

If the UK Government are serious about protecting Scottish agriculture, I suggest they listen to the president of the NFUS, Andrew McCornick, who has made it clear that the union’s priorities include securing friction-free trade, access to skilled labour and a support package specifically designed for Scotland. He was absolutely spot-on when he said that maintaining access to the single market and the customs union was essential for Scotland’s farmers. On today of all days, if a deal can be found for one part of the United Kingdom to remain in the single market, there can be no other reason than political pig-headedness that such a deal cannot be found for Scotland.

[Stephen Gethins (North East Fife) (SNP)]

Does my hon. Friend agree that, if immigration powers were to be devolved to the Scottish Parliament, that would allow us to make provisions for agricultural workers? That was proposed by the Environment Secretary, who is on the Government Front Bench at the moment.

[Brendan O’Hara]

I could not have put that better myself. My hon. Friend is absolutely correct.

We have heard much today from the hon. Members for Banff and Buchan (David Duguid) and for Stirling (Stephen Kerr) about trust. They said that we should trust the UK Government to do the right by the Scottish farming community, but why would the Scottish farming community trust this Government to do the right thing? This is a Government who shamelessly robbed the Scottish farming community of the convergence uplift, and I doubt that that community will ever trust them again. The Government have to recognise the hugely important part that the Scottish farming community plays, economically and socially, in our lives. It is a vital component of our rural economy. It keeps the land productive and, in many cases, it is members of that community who keep the lights on in the glens of Argyll and the west highlands. I fear that London and Whitehall do not understand that community.

In conclusion, Brexit is a huge challenge for the Scottish farming community. Without a deal on agriculture that does not return legislative competence from Brussels to the Scottish Parliament, Brexit poses an existential threat to Scotland’s farming communities and will be a disaster. Tonight is the first real test of whether the Scottish Conservatives, who are wrong on a whole host of issues, actually put Scotland’s interests first; or are they, as many suspect, simply the Conservative party on manoeuvres in Scotland? They know that, if they choose to vote with the Government tonight and let the Bill go unamended, the result will be catastrophic for Scottish farming. What comes first: their loyalty to the captain of a sinking ship or to the rural communities of Scotland? Be in absolutely no doubt that no serious person believes that lumping Scotland in with the rest of the UK on agriculture is a good thing. This is a litmus test for the Scottish Tories, and I look forward to joining them in the Lobby.

[John Mc Nally (Falkirk) (SNP)]

I rise to support the amendments in the name of my right hon. and hon. Friends and to oppose clause 11. I have sat here since 3 o’clock, and I have been to the toilet once, nearly equalling Mr Speaker’s record, so he is obviously having an influence on my ability to hold in my water.

As a member of the Environmental Audit Committee, I want to discuss my concerns about clause 11 and Scotland’s environmental laws. Since Scotland gained a devolved Parliament, the political conversation on the divergence of policies has in many cases become diametrically opposite to the policies here in Westminster. I have always believed that, if someone wants to change the world, they have to get busy in their own little corner. The Scottish Government and the Scottish Parliament have done and are doing just that, and they are backed by the people of Scotland in trying to come up with more policies to improve social wellbeing and social mobility. A better community means that a better community spirit can be established, but if the present Tory Government stand in the way of our targets, aims and aspirations, do not think for one minute that the Scottish people will take that lying down—they will not.

The Scottish Government have steadily improved their environmental policies, which have been praised by a variety of academics and recognised by various politicians from other countries, who have commented positively on Scotland’s aims and ambitions. During a trip by the Environmental Audit Committee to Washington earlier this year, the president of one of the universities that we visited could not speak highly enough of the Scottish Government and all their chemical policies, and I want the Labour party and the Conservative party to remember that. The Scottish Government have provided certainty of policy on environmental issues and that policy sits at the top of the tree. Investors like that. Investors who believe in corporate responsibility like that. Investors in people and businesses who see the positive social impact that good, sustainable policies deliver to all parts of the community like that. Expert commentators like that. Most importantly, our people—the Scottish people—like that, and it is the right thing to do. That is why it is so important that we as a country protect our carefully thought-out policies—our devolved policies.

I want to give some examples of comments about our policies that have been given to the Environmental Audit Committee. Professor Holgate, who is an expert on the health effects of poor air quality, said:

“Scotland is taking a lead in this area… Scotland has been able to… keep the relationships between the public, health and local authorities intact. In this country”—

England—

“they have drifted apart”.

He praised the Scottish Government’s approach to tackling poor air quality and their adoption of World Health Organisation guidelines on fine particulates into law—the first country in Europe to do so. He challenged England to raise the bar—I like that. Do we need to protect these policies? Yes, we do.

We simply must not get soil health wrong. Sir Peter Melchett and David Thompson attended our Committee. During their evidence, David Thompson said:

“The Scottish Government…have a statutory requirement to produce a land use strategy under their Climate Change Act, which is not the case for the rest of the country.”

Sir Peter Melchett said that the Scottish Government were looking at the science of soil protection 15 years ago and that the science is linking more closely in Scotland than he has

“ever seen happen in England.”

I like that. Sir Peter Melchett and David Thompson are educated, knowledgeable people. Do we need to protect that policy? Yes, we do.

I will now get a wee bit into the crux of the matter, the re-reservation of powers and the possible threat to Scotland’s environment. Emma Barton, the Royal Yachting Association’s planning and environmental manager, and Professor Carolyn Roberts, vice-president of the Institution of Environmental Sciences, both appeared before the Environmental Audit Committee. When I asked them about marine protection zones, Emma Barton said:

“As far as I am concerned we have had a…positive experience in Scotland… I don’t have any particular concerns…in Scotland.”

When I asked Professor Roberts about the possible post-Brexit danger that devolved Administrations would be forced to take things they do not want, such as genetically modified crops or fracking, her answer was yes. Again, I pressed her on whether these powers could be taken back, and she said, yes, of course they could.

The complexity of working out exactly what the devolved Administrations can and cannot do will mean that every legal decision they make in areas touched by European legislation will be open to challenge at UK level. Effectively, this could turn them into paper Parliaments whose decisions could be overturned by anyone with the resources to launch a case at the UK Supreme Court. The Scottish Government agree that common frameworks are needed to guide many legislative areas across the UK post-Brexit, but the frameworks need to be agreed, not imposed.

My last quote is from the Secretary of State for Environment, Food and Rural Affairs, who was sitting in the Chamber earlier. He has said that he had his own “Damascus moment” on environmental issues, which I welcome, but he raised eyebrows at the EAC in November with his answers on devolved matters. He promised to clarify his position, which he has done by way of a letter to the Committee. Or has he? The letter said:

“In particular, we will explore with the devolved administrations whether they wish to take a different or similar approach. We have been clear throughout that we respect the devolution settlements, that we expect more powers to be devolved and that no decisions which the devolved administrations currently make will be taken from them.”

Consider that. I repeat it:

“no decisions which the devolved administrations currently make will be taken from them.”

Post-Brexit, will the Government honour the Environment Secretary’s statement and make the temporary position permanent?