Clause 11 - Procedural requirements

Retained EU Law (Revocation and Reform) Bill – in a Public Bill Committee am 2:15 pm ar 24 Tachwedd 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy) 2:15, 24 Tachwedd 2022

I beg to move amendment 81, in clause 11, page 13, line 26, leave out subsections (1) and (2).

This amendment removes the subsections that omit and replace paragraphs 13, 14, and 15 from the European Withdrawal Act 2018, and thereby leaves intact the existing scrutiny procedure for instruments which amend or revoke subordinate legislation made under s2(2) of the ECA 1972.

Good afternoon, Sir George. In essence, the amendment would remove the subsections that omit and replace paragraphs 13, 14 and 15 of schedule 8 to the EU withdrawal Act and leave intact the scrutiny procedure inserted for instruments that amend or revoke subordinate legislation made under the European Communities Act 1972.

If Ministers wish to revoke retained EU law, they are currently subject to what I would consider to be an appropriate level of parliamentary scrutiny, with mandatory explanatory statements, mandatory periods of prior parliamentary scrutiny and the mandatory use of draft affirmative procedures. Those enhanced provisions were inserted during the passage of the EU withdrawal Act in 2018 because Parliament considered such enhanced scrutiny necessary and proportionate, given the vast and varied nature of retained EU law and the potential impact of changes that we have debated at length over the past few days. We are talking about important environmental rights, workers’ rights and consumer rights. As we can see from the submissions made to the Committee, it appears that social media platforms are also at risk of being inadvertently switched off as a result of the Bill. We therefore think that this enhanced scrutiny is required.

I gather that the Government’s response as to why the requirements from the EU withdrawal Act can be watered down is that they believe those procedures have brought no tangible benefit. However, it is difficult to see what the rationale is for reducing the level of scrutiny when Parliament as a whole obviously thought that they were important enough to place in the Act just a few years ago. Could the Minister set out why she considers that a lower level is now appropriate?

I hear what the Hansard Society said about these procedures not having been used extensively thus far, but we are, of course, talking about something of an entirely different order to what we have seen to date. The procedures have mainly been used to maintain the status quo, but we are on a different and possibly uncertain trajectory now. It is clear from the Government’s refusal to accept any of our amendments to protect any pieces of regulation that there are going to be dramatic changes as a result of the Bill. Removing the requirement for the affirmative procedure will, once again, see a significant erosion of Parliament’s ability to scrutinise and hold Ministers to account when they amend the law. Why should parliamentarians not have greater involvement in the process set out in the Bill?

I have said this a number of times, but we really should aim to do better in the Bill. We should ensure that we are confident that, when changes are made, both Houses are able to scrutinise Ministers’ decisions. We will probably be presented, yet again, with arguments as to why we do not need such levels of scrutiny because these laws were foisted on us against our will in the first place, but that is essentially a way of saying that two wrongs make a right. I do not accept that. As I explained extensively on Tuesday, there has been a great deal of involvement on the part of UK politicians and representatives in the development of EU laws. I just do not accept the characterisation of these laws as having been foisted on us as correct.

I am not going to rehash all the arguments at the length I did the other day. I merely reaffirm that scrutiny is important, and when we, as parliamentarians, are faced with such a ministerial power grab, we should be concerned about trying to restrain it in some way. That is what this amendment seeks to do.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Apologies, Sir George, I was waiting for an affirmative action—in the same way I am waiting for an affirmative version of scrutiny from this legislation.

I rise to support amendment 81 because it is the nub of the issue, isn’t it? This is exactly what taking back control was supposed to be all about. It was about giving this place the powers that it was claimed had been cruelly taken from us by being part of the European Union. It is a while now, if we are honest, since we had the Brexit debates, but I do not recall a single leaflet that said, “Taking back control to Downing Street. Taking back control to a civil service office that would advise a Minister to pass an SI.” Yet, that is exactly what this piece of legislation will do on thousands and thousands of laws that our constituents care about because they have depended on them existing for generations.

I totally understand the challenge for Government MPs. Whether they were elected in 2019 or before, their experience of this Government has been of stability—of confidence in every decision and every piece of legislation that has been introduced. So they have never felt the need to question things or to have a mechanism whereby they could have a voice. What I often hear them loudly saying is, “In Downing Street we trust”—

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Whoever is in it at any point—this week, next week, come what may.

The point is that parliamentary scrutiny is not a bad thing. Those of us who are democrats think it is quite a good and healthy thing.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

My hon. Friend is making a powerful point. Does she recognise the way this procedure contrasts with the way these laws were originally made? Obviously, under the co-decision making in the European Union, laws are not made only by the Commission, which is characterised as the bureaucrats. They can be passed only with the active engagement and approval of the Council of Ministers, consisting of elected representatives from each member state, and the European Parliament, consisting of directly elected Members. Does it not appear that, when Government Members talk about taking back control, the democratic deficit that they once spoke of, pointing their fingers at Brussels, will now be pointed out here?

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

My hon. Friend has alighted on the fundamental challenge here. Obviously, it is a case of Council of Ministers—bad; individual Minister—no problem whatever. That seems to be what this Bill is doing and the process that MPs are setting up. As somebody who is hopeful that—not too long from now—Labour Members will be sitting on the Government side of this room, I still think it is a good idea for Back-Bench MPs to be able to raise questions, to table amendments and to have a voice. I thought taking back control was very much about saying that we did not trust Ministers when they joined a Council, but we did trust them when they had to face parliamentary scrutiny and to be in front of MPs who could ask them questions—difficult or otherwise, approved by the Whips or not. I know that my Whip, my hon. Friend the Member for North Tyneside, will catch my eye at this point. Amendment 81 would restore the scrutiny powers that we all agreed to in the EU withdrawal Act in the end and that were part of a process of giving people in this place more opportunity to influence what would happen next.

There is a practical challenge here. If we have all accepted that we do not even know which laws will be covered, because the dashboard will not be updated until next year, will all of us on this Committee be completely confident when a constituent comes to us and says, “You did X, but your Parliament did Y. Tell me the reason for that. Did you vote for that? Where were you when laws were passed that led to Facebook stopping working in the UK? Where were you when laws were passed that led to pension protections being deleted? What did you say? Did you vote for it? How did you represent me in that process?”—and answer there comes none, because the powers were entirely with Ministers, and the power of scrutiny, which MPs in this place could have saved and given to colleagues, was abandoned?

It is very concerning to see the Government try to delete paragraph 15, which simply requires them to explain why they thought it was necessary to revoke a piece of legislation. I return to the discussion we had on Tuesday about the Bauer and Hampshire judgments. Some might argue that, because one of those judgments went against the Government, judgments about pension protections were no longer required, but making the Government explain why they have chosen not to retain a piece of legislation that has been part of our pension protections for a number of years does not seem unreasonable. This is the sort of issue that our constituents might well raise if they are directly affected by it. If we multiply that by 4,000, we have 4,000 questions about why we chose to revoke laws.

Paragraph 15 simply asks the Government to set out why. Are we in a place now where Ministers are so worried about being held to account that they cannot even tell us why they are not doing things, let alone why they are doing things? It is one thing to come up with alternative legislation, but given that the Bill will give Ministers powers to change laws by not bringing forward legislation, it is entirely reasonable, in a parliamentary democracy, to ask them to account for why they are not doing things, as well as for why they are.

Government Members may have complete faith and confidence in the ability of current Ministers to make good decisions, and if those Ministers no longer wish to have a piece of legislation, Government Members will not need to question that. If they are confident about that 4,000 times and rising and confident about laws that they do not even know will be affected, so be it. But if they are not—if there is one scintilla of doubt about the fact that their constituents might want them to at least ask a question or seek clarification—the amendment is the mechanism that would allow that to happen. Members—on both sides of the House—give up these controls and parliamentary mechanisms at our peril. Just as courts keep Governments honest, parliamentary scrutiny keeps MPs on their toes, and that can only be a good thing.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary) 2:30, 24 Tachwedd 2022

I stand to speak in favour of the amendment, although, at best, all it seeks to do is take an entirely unacceptable clause and make it slightly less unacceptable. Clause 11 is about a Henry VIII power; it is about removing protections for this House that were, ironically, forced on the Government by Members of the other House. I am not a great fan of unelected legislatures anywhere—I certainly do not want my country even partly ruled by one—but I have to say to Conservative Members that when the House of Lords is keener on protecting the rights of this House than Government Back-Bench and Front-Bench Members are, the Government really do need to look at themselves in the mirror and ask themselves: are we a democratic Government or are we not?

I support the limited improvements to the clause, but if the amendment falls, I will seek to divide the Committee to exclude clause 11 in its entirety.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

I ask hon. Members to reject the amendment. Unless I was in a different Committee Room, or on a different planet, I think Opposition Members have had every opportunity to raise their voices, because we have heard much from them today and on Tuesday, and we have had much scrutiny as well. Our constituents know exactly what we are doing because it is all noted in Hansard.

The amendment would render clause 11 without purpose. Subsections (1) and (2) ensure the removal of additional parliamentary scrutiny requirements, established in the EU withdrawal Act, in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972. Subsections (1) and (2) will ensure that when secondary legislation made under section 2(2) ECA is being amended or revoked using other delegated powers, the only parliamentary scrutiny requirements that will apply are those attached to the power being used. These delegated powers have their own parliamentary scrutiny procedure attached, which has been approved by Parliament, ensuring suitable scrutiny will continue to occur.

It is imperative that additional scrutiny requirements are removed, because it is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys this privileged status. What is more, no tangible benefit has been identified as a result of these scrutiny requirements; as was mentioned, that was referenced in the evidence session by Dr Ruth Fox of the Hansard Society. In practice, they add a layer of complexity that makes it difficult to make amendments to legislation containing section 2(2) ECA provisions.

Removing these requirements reflects the main purpose of this Bill, which is to take a new approach to retained EU law, removing the precedence given in UK law to law derived from the EU that is no longer considered fit for purpose.

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (International Human Rights and Conflict Resolution), Shadow SNP Deputy Spokesperson (Cabinet Office)

The Minister said that we get our voices heard, including in this Committee, and that may well be true for the Government, the official Opposition and SNP members. However, we have heard a lot today about Northern Ireland. When is the voice of the Democratic Unionist party and the Social Democratic and Labour party going to be heard? We have heard a lot about the environment, but where is the voice of the Greens? Where is the voice of Plaid Cymru? Where is the voice of the Liberal Democrats? They will not be heard in a Delegated Legislation Committee. We are not talking about the voice of Parliament, but the voice of a DL Committee, which is very restricted.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

The hon. Member is not being wholly honest. The level of scrutiny of any piece of legislation, not only in Committee but on the Floor of this House and the Floor of the other place, takes place for all items of legislation.

The hon. Member will be well aware of the evidence session we had just a few weeks ago, when we had a number of people from environmental agencies who previously had Green credentials or who were previously Green or Lib Dem candidates. So it is not as if those voices are not heard.

Photo of George Howarth George Howarth Llafur, Knowsley

I know you were trying to intervene. Do you want to make a speech?

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

I think the irony is noted: the Minister says that everyone has their opportunity to speak and then does not give way to interventions.

Photo of Luke Evans Luke Evans Ceidwadwyr, Bosworth

On a point of order, Sir George. I think it is fair to say that the Minister has given way numerous times. It is a little churlish to suggest that she has not, and I would like Hansard to observe that.

Photo of George Howarth George Howarth Llafur, Knowsley

As the hon. Gentleman well knows, it is not up to me to decide whether a Minister, or anyone else, should give way during a speech. So, strictly speaking, it is not a point of order, but the hon. Gentleman has made his point.

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

The convention is of course that Ministers give way when asked to in Bill Committee, because that is the point of a Bill Committee—that we have the opportunity to scrutinise legislation and question the Minister on its intent. I think the record will show that that has not been possible on every occasion.

That is why this amendment is so important, because the Government are obsessed with keeping power for themselves. The idea that the decision to leave the EU was about taking back control was not about the people of this country; it was about Ministers in Parliament making decisions that they do not have to address the elected representatives of this country on and that they do not have to justify. They are hiding away from proper accountability. That is not what taking back control is about.

My hon. Friend the Member for Walthamstow said it is clear that Government Members have no scintilla of doubt about the intentions of the Government and are confident that nothing untoward will happen. Well, if the last scintilla of doubt has ridden out of town for them, it is certainly very much in the high street for us, because we are concerned about the Government’s intentions. We have plenty of reasons to be concerned that they will not maintain laws that we want maintained and that our constituents expect to see maintained. So we want to push this amendment to a vote.

Photo of Stella Creasy Stella Creasy Labour/Co-operative, Walthamstow

Does my hon. Friend agree that it is quite worrying that the Minister is conflating scrutiny of the Bill, and Opposition Members raising concerns about the process set out in it, with scrutiny of the subsequent statutory instruments that will be laid by Ministers under the Bill to address the 4,000 pieces of legislation that will be deleted by it? The Committee is scrutinising the Bill itself, not its impact. That the two are being conflated—the idea being that no further scrutiny should be required—is troubling. We do not know what impact the Bill will have, only the powers that it asks for. Does my hon. Friend agree that separating out those two things is important in taking back control?

Photo of Justin Madders Justin Madders Shadow Minister (Future of Work), Shadow Minister (Business and Industrial Strategy)

I agree, and I hope that by the time the Bill reaches its conclusion we have clearer answers on how Parliament will be able to properly scrutinise many of the powers that the Government are awarding themselves in the Bill. I will press the amendment to a vote.

Question put, That the amendment be made.

Rhif adran 8 Retained EU Law (Revocation and Reform) Bill — Clause 11 - Procedural requirements

Ie: 7 MPs

Na: 8 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

I oppose the inclusion of clause 11, as I indicated earlier. I will give the Minister credit and assume that she just got confused. She has attempted to justify removing the requirement for full parliamentary consideration of a Bill to revoke European legislation and turning it all into secondary legislation. Not content with insisting on a sunset clause that means that if that secondary legislation does not get approved, nothing gets approved, she then attempted to justify removing the requirement to use the affirmative process for the vast majority of that legislation and instead use the negative process, which we all know is an even weaker form of parliamentary scrutiny. She completely missed the point. In fact, I think she confused the status of a Public Bill Committee such as this with that of a Delegated Legislation Committee, which she thinks is an adequate way for some of these important regulations to be considered.

The reason this Public Bill Committee exists is that the legislation was approved—not unanimously, by any means—by the House of Commons. The only requirement that anybody had to speak and vote on Second Reading was that the people of their constituency chose them to represent them in Parliament. Every member of the Committee is here because our party Whips chose to put us here. We were not elected to it by our people. We had to be elected to be in the Chamber of the House of Commons, but it is the Whips who decided who got to serve on this Committee. As my hon. Friend the Member for Argyll and Bute has said, Northern Ireland Members never get the opportunity to have their voice heard on a Delegated Legislation Committee, though they do have a voice on Second and Third Reading. There is also no automatic right for Wales to be represented. Wales is represented in this place by four political parties, but there is only one voice from Wales on this Committee. That did not have to happen; the Whips could easily have put someone else on it instead.

Only one of the many parties in this House from Scotland is represented on the Committee. As the other parties keep reminding us, the SNP speaks for a significant number of people in Scotland but not for the whole country. There are Lib Dem and Conservative MPs and one Labour MP from Scotland who for speak for their people, as well.

The process that the Minister and her party claim is adequate is a very weak process. At one point she suggested—unintentionally, I think—that legislation does get properly scrutinised and that is what this Public Bill Committee is about. But that is the core point, is it not? If these changes were being made through secondary legislation, there would be no Public Bill Committee and no opportunity to amend the provisions. That is another crucial difference, especially when looking at tonnes of complex legislation.

In a Delegated Legislation Committee, the choice is to take it or leave it. There is no process by which any Member of Parliament can amend delegated legislation once it is brought to Committee. Even if 649 out of 650 Members of Parliament decided on the day that they wanted to amend it, they would not be allowed to that. All we can do is vote down such legislation and pray to God that the Government have the time and inclination to bring a better version back.

And then we have December 2023 hanging over us like the sword of Damocles. It would be a very high-risk strategy indeed for any DL Committee to vote down any of the legislation that the Government intend to bring forward under this Bill, because there would then be a very high risk that inadequate, insufficient protective legislation would be replaced by nothing whatsoever. That is what is at stake here. It is not just a matter of semantics as to which kind of Committee decides these things in a Committee Room of the House of Commons.

If we are talking about bringing back control to Parliament, Parliament does not have full control over consideration of statutory instruments. That is, first of all, the reserve of the Government. Such scrutiny as takes place is inevitably restricted to a very small number of Members of Parliament, representing a relatively small number of the political parties represented in this place. As I say, an entire nation of the United Kingdom will never get to be represented on a DL Committee, even if the legislation almost exclusively relates to that nation of the UK. It is not an acceptable way for major legislation to be introduced and considered, and it is certainly not an acceptable way for major legislation to be approved.

Photo of Luke Evans Luke Evans Ceidwadwyr, Bosworth 2:45, 24 Tachwedd 2022

If Scotland were to be independent and part of the EU, the European Council uses majority voting so members have to like or lump whatever they are given at the end of the vote. At the end of the day, someone has to make a decision and Government have to decide. How would that fit if Scotland were independent?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Deputy Spokesperson (Treasury - Chief Secretary)

I cannot speak about what decisions the Scottish Parliament will take after we are independent, but I look forward to seeing that day before any of us are very much older. I am confident that it is a modern, democratic Parliament with much improved scrutiny procedures. For example, in the Scottish Parliament it would have been impossible for us to have two changes of Prime Minister without the explicit approval of the Parliament. Nobody can become a Minister of the Scottish Government without being approved by the Scottish Parliament. There is much greater parliamentary accountability for the Executive than there is ever going to be here.

My confident expectation is that when an independent Scotland goes back into the European Union, the Scottish Parliament will have a much greater role in scrutinising the actions of our Ministers, acting on our behalf, at the European Council than this Parliament has ever had. As I have said to the Committee before, the problem with lack of accountability and scrutiny of European legislation is not because the European Union’s processes are flawed, but because parliamentary accountability in this place is fundamentally flawed.

If I intended to be part of this establishment for much longer, I would be attempting to improve its processes in order to bring it into line with proper democratic Parliaments, such as the one in Scotland. Given that neither I nor any of my colleagues from Scotland are likely to be here for very much longer, I will have to leave it to those who remain to sort out the mess of a Parliament that they have created.

Photo of Nusrat Ghani Nusrat Ghani The Minister of State, Department for Business, Energy and Industrial Strategy

Our objective is not to remove power from Parliament. Our objective is to ensure that amendments or revocations made to subordinate legislation made under other existing powers receive the most appropriate level of parliamentary scrutiny. Fundamentally, people need to accept the Brexit vote and appreciate that we have to have sovereignty here. I do not think we are going to win that argument—we are too far apart.

When the European Union (Withdrawal Agreement) Act 2020 was agreed, additional parliamentary scrutiny requirements were agreed in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972. It is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys that privileged status. We therefore seek to remove those requirements. This reflects the main purpose of the Bill—removing the precedence given in UK law to EU-derived law—which is no longer fit for purpose now that the UK has left the EU. I recommend that the clause stand part of the Bill.

Question put, That the clause stand part of the Bill.

Rhif adran 9 Retained EU Law (Revocation and Reform) Bill — Clause 11 - Procedural requirements

Ie: 8 MPs

Na: 7 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Clause 11 ordered to stand part of the Bill.