European Union (Withdrawal) Bill — House of Commons, 2017-12-12
Topic: International Affairs
Stuart Campbell McDonald (Scottish National Party, Centre-left): Thank you, Mr Hanson, for the opportunity to join hon. Members in their criticism of the extraordinary breadth of the Henry VIII powers contained in this Bill and the inadequacy of existing scrutiny procedures for dealing with them. I welcome the host of amendments that have been tabled by hon. Members to help remedy these concerns The right hon. and learned Member for Beaconsfield (Mr Grieve) helpfully identified that there are two different types of amendments that seek to improve the situation. One group seeks to limit the scope of the powers so that they are used only in appropriate circumstances and only for the specific purpose of correcting tightly defined deficiencies. A second group of amendments seeks to enhance our ability to scrutinise the statutory instruments that Ministers will make using these powers. All those ideas are welcome. If several of them were passed this evening, they could make this part of the Bill a little bit more palatable I will focus on a third type of amendment that throws up a different issue in relation to clause 7—an issue for which I am not sure we have found the perfect remedy. Rather than limiting the use of Henry VIII powers or strengthening oversight of them, this group of amendments would require that the Government take action to ensure that certain important provisions of EU law can operate effectively after withdrawal. After all, clause 7 expressly anticipates—in fact, the whole thing is premised on the fact—that there will be chunks of retained EU law that will not operate effectively if deficiencies are not prevented, remedied or mitigated. The express purpose of this Bill is saving and incorporating EU law as it stands on withdrawal day, but this purpose would be undermined considerably if parts of that EU law were allowed, whether by accident or design, simply to fester away uncorrected and therefore unable to operate effectively. It is for those reasons that a number of amendments have been tabled positively requiring action to be taken, including new clauses 62 and 63 on environmental law, amendment 131 on the rights of EU citizens and amendment 385 on European protection orders. I will focus on a similar example—new clause 53 New clause 53 would require changes to the immigration rules to retain the effectiveness of the Dublin regulation. Dublin III is far from a perfect set of rules, but it has the welcome goal of ensuring that an asylum claim is determined in the most appropriate EU member state. Its most positive feature is the ability for a person who has made a claim in one member state to seek to have that claim transferred and determined by another member state—for example, where a young asylum seeker has a sibling, aunt or uncle in that country. For all the flaws of the Dublin regulation, those provisions are surely worth saving, regardless of how negotiations proceed Even though the rules are retained by the Bill in theory, Dublin III would clearly struggle to operate effectively unless corrected under clause 7. To prevent that, new clause 53 is designed to ensure that those powers are used so that "take charge" requests can continue to be made in the UK. Going further, for one limited and vulnerable group, the new clause seeks to bring the definition of family contained in UK family reunion rules in line with the definition of family in the Dublin regulations. It would mean that an unaccompanied child could seek family reunion with a broader group of family members without needing to make dangerous journeys to Europe in order to claim asylum and make a Dublin request. Currently—with the exception of when joining parents—alternative options for unaccompanied asylum-seeking children under the immigration rules are too restrictive and costly. As a result, they are rarely used. As UNICEF makes clear, a failure to take action risks adding to the number of unaccompanied children forced to take dangerous journeys with smugglers and traffickers in order to reach close family in the UK. That is why new clause 53 is so important I turn finally to a more general question. For every amendment or new clause that we are debating today requiring that retained and incorporated EU law in a particular area must be corrected using these powers, there will be large swathes of other EU laws where there is no such requirement. The question that occurs to me is: what happens if, by oversight or choice, the Government do not fix those provisions, rendering key measures useless? What are our courts going to do if confronted, for example, by a citizen seeking to establish rights under retained EU law when that retained law is riddled with deficiencies? Is the court supposed to try to make that work? Does the person lose their ability to exercise that right? I do not think that this issue has been touched on in the debate. In short, I wonder whether we still have work to do to find the appropriate and comprehensive solution in this Bill Should there be a mechanism, for example, to put Ministers under an obligation or duty to ensure that retained EU laws operate effectively? Should our courts be required to interpret retained EU laws in such a way as to make them operate effectively wherever possible? Should there be a procedure to allow courts to flag up rules they have found cannot operate effectively? More modestly perhaps, do we simply need to require the Government to publish a list of all the deficiencies they have found in retained EU law and to detail what, if any, action they are taking to remedy them? That is, do we require the Government to list not only the statutory instruments they intend to table under clause 7, but what deficiencies they have identified that they are not going to rectify in that way? I am concerned that, without such changes, Parliament’s intention of retaining EU law and an efficient and effective statute book after exit day may not prove as effective as we would wish.