The European Union (Withdrawal) Bill

I have always said that while there was a vote to leave the European Union, we were not told how we should leave the European Union.

I note that the European Parliament will have a vote on the final deal. Therefore it has always been very important in my view that the UK Parliament and its elected representatives also have a vote on the final deal. This is particularly important in the context of Parliament and MPs “taking back control” as we leave the EU, which is why so many people voted Leave.

I feel the significance of a vote at the end of the process has relevance during the negotiations as well as at the end of it. It will incentivise the Government to consult more with MPs during the process, which should provide a better outcome.

This is why my colleagues and I tabled Amendment 7 on the first possible day, Monday 11th September.

At present I have tabled twelve other amendments with my colleagues:

• Amendment 1 - To restrict the power of a Minister to make regulations to amend retained EU law to cases where the EU law is deficient in the way set out in the Bill.
• Amendments 2, 12 and 13 - To narrow down the circumstances in which Ministerial powers can be exercised by preventing the reduction of rights or protections. This amendment will protect the rights of EU citizens as it ensures Ministers cannot prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. I believe these amendments are more effective at protecting the rights of EU citizens than Amendment 131.
• Amendments 3 and 4 - To set up a triage and scrutiny system under the control of Parliament for determining how Statutory Instruments under Clause 7 of the Bill will be dealt with.
• Amendment 5 - To prevent the abolition by SI of a function currently carried out by an EU entity in the UK, as opposed to its replacement or modification.
• Amendment 6 - To prevent the creation of different exit days for different parts of the Act.
• Amendment 8 - To allow the Charter of Fundamental rights to continue to apply domestically in the interpretation and application of retained EU law.
• Amendment 9 - To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law and to allow damages to be awarded for any proven breach of such a principle.
• Amendment 10 - To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law.
• Amendment 11 - This amendment would remove the proposal to allow secondary legislation to be treated as primary for the purposes of the Human Rights Act 1998.

I have not signed the amendment regarding a referendum at the end of the process. That is outside of the scope of this Bill. The aim of this Bill is to bring all EU law into UK law, and so our amendments are focussed on that.

I understand there are calls the United Kingdom to pursue membership of the Single Market through the European Free Trade Agreement (the so-called ‘Norway option’). While this Bill is not the right time or place to insist on Single Market membership, it is an option I am carefully researching and evaluating. This is an issue I am sure will be debated in greater depth as the negotiations proceed.

You can find a full list of the amendments here.

Finally, please see below my statement on the Bill from 7th September, and further amendments I have signed. 

 

UPDATE 14/11/17

I have signed 10 further amendments to the Bill. 

• NC55 - This amendment would qualify the powers conferred to alter law by statutory instrument after exit day.
• NC71 - This new clause would require a Minister to report before exit day on the Government’s progress in negotiating mutual market access for financial and professional services
• NC72 - This new clause would require a Minister to report before exit day on the Government’s progress in negotiating mutual recognition of controls on food and feed imports. It would also require the Government to permit, so far as possible, full cost recovery for authorities carrying out border inspections of food or feed.
• Amendment 356 - The amendment would allow Ministers, with parliamentary approval, to apply EU legislation which has been passed before exit day but does not take full effect until after that day, along with subordinate measures made for the purposes of EU legislation which is retained under the Bill and taking effect after exit day.
• Amendment 357 - This amendment provides a scheme for interpretation of EU law and to provide a backstop where necessary transposition has not been effected by regulations made under Clause 7
• Amendment 358 - The amendment would make clear that non-binding aids to the interpretation of EU law, such as background materials and official guidance produced before exit day, should continue to be taken into account by the courts when interpreting retained EU law to the same extent as at present.
• Amendment 359 - The amendment would make clear that retained EU law cannot be modified under clause 7 to restrict the rights of EU nationals or businesses in the UK simply because UK nationals or businesses may lose equivalent rights in the EU as a result of the UK’s withdrawal.
• Amendment 360 - The amendment would require early consultation with representatives of the financial and professional services industries on relevant modifications which are to be made under clause 7.
• Amendment 361 - The amendment would make clear that aspects of EU membership, such as the automatic effect of EU law and enforcement and adjudication mechanisms, can be maintained for an implementation period if the Government agrees to do so as part of the withdrawal agreement.
• Amendment 362 - The amendment would make clear that the Bill does not modify the interpretation of contracts relating to EU law.

 

European Union (Withdrawal) Bill - 7/9/17

Today the House of Commons began its scrutiny of the European Union (Withdrawal) Bill, which starts the task of separating EU law and UK law, and establishing new domestic regulatory and administrative system. This is the biggest legislative challenge the UK has ever faced, especially as it must be completed in under two years.

This Bill is necessary and sensible in principle, but it is not without major faults which I shall be seeking to amend.

This is not an exercise of merely technical importance, it will significantly impact the day to day workings of industries highly regulated by EU law, such as financial services.

There are two parts of this process, adoption and adaption. Firstly, EU law must be brought into domestic law. This is sensible, as it allows for legal certainty and avoids a vacuum from the moment we leave the EU. Secondly, it is also necessary that much of this law is amended, for example to remove references to EU institutions the UK is no longer part of. I support the principle of this Bill, and that is why I will not vote against it at Second Reading.

However, in my view the powers granted to Ministers are too potent and too broad, leading to the very real risk that important policy changes to retained EU law will be made by Ministers without the full scrutiny of Parliament. That is why I am pressing the Government to accept a number of amendments at the Committee Stage of this Bill to fix these issues.

 

Potency

The powers conferred to Ministers in this Bill are extremely potent.

For example Clause 9 allows the Government to implement any withdrawal agreement by regulations, but that these powers will lapse on exit day.

This power can only really be used once the content of the withdrawal agreement is known. Given Clause 9 could be used to bring in major policy changes relating to EU citizens, the Irish border and dispute resolution, and the assurances made by the Government on a Parliamentary vote to approve a deal, the implementation of any exit deal must surely be scrutinised by Parliament.

This power could be contingent on Parliament approving the withdrawal agreement. Alternatively, this power could be included in legislation to accompany and approve any withdrawal agreement, so the power can be more tailored to the specifics of any deal. 

 

Scope

The powers have an extraordinary scope, notwithstanding the restrictions on matters such as increasing taxation, creating criminal offences and amending the Human Rights Act.

The way the powers are defined contribute to their wide scope. With regards to the powers in Clause 7, it is unclear what terms such as ‘deficiency’, ‘redundant’, ‘failure to operate effectively’ or of ‘no practical application’ really mean. This is not just a technical question, people and businesses will want to know what rules are likely to be changed, and which are not.

I would like the Government to consider tighter definitional criteria behind the powers, and a range of safeguards to stop the powers being abused, such as in the Legislative and Regulatory Reform Act.

It is also alarming that under the Bill as it stands, in theory a Minister through a statutory instrument with minimal or no Parliamentary debate could remove the existing rights of EU Citizens if a deal is not reached with the EU. Earlier in the year after I met with the Home Secretary she promised that nothing will change for any EU citizen in the UK without the consent of Parliament, and this Bill should make sure this is the case. EU Citizens contribute so much to our country, and London in particular, and so their rights should be protected in our law.

 

Scrutiny

In the Bill only a very limited set of changes will lead to full Parliamentary scrutiny, with the default position being a change will only attract the “negative” scrutiny procedure.

Constitutionally this should be a major concern. The role of Parliament is to scrutinise legislation, and for many Leave voters “taking back control” and sovereignty were the key issues. Yet if this Bill passes in its current state then legislation being made in Brussels with little UK Parliamentary scrutiny will just be replaced by unaccountable Ministers making legislation!

Given the complexity and uncertainty of the task ahead it is not good enough that the default position is the negative scrutiny procedure. It is simply impossible for the Government to anticipate all potential changes at this stage and determine the appropriate method of scrutiny. I would prefer to see a more flexible solution such as that put forward by the House of Lords Constitution Committee, where a Parliamentary Committee can determine whether a change deserves full Parliamentary scrutiny, or is merely a minimal technical change. This is a procedure already in place for other Ministerial powers, and so there is no reason why we should not use it here.

 

Programme Motion

With regards to the programme motion, I believe the 8 days of 8 hour debates is sensible and should allow enough time to scrutinise the details of the Bill. After representations from me and my colleagues, the Government has agreed to seriously consider extending the time for debate if necessary. I look forward to contributing to the debate at Committee Stage.

 

Conclusion

While this Bill purports to deal with the legal technicalities of leaving the EU, it could have wide ranging effects on people and businesses. That’s why we need to ensure that Parliament is still able to hold the Government to account and ensure Brexit works as well as possible for the country and London. The principle of this Bill in bringing all EU law into UK law is right, and so I will not vote against it at Second Reading, however I want to see a number of amendments made at Committee Stage.