European Union (Withdrawal) Bill — House of Commons, 2017-12-12
Topic: Mixed Topics
Matthew Thomas Pennycook (Labour, Centre-left): That is precisely our concern. We discussed that at length on day 2 in Committee, when we were talking about the need for enhanced protection for retained EU law because it will be stripped away from its underpinnings in EU law post-exit A further concern about the language in clause 7(1) is that, given how wide clauses 2, 3 and 4 are in respect of what will come under the umbrella of retained EU law, Acts of Parliament that are linked to EU law, such as the Equality Act 2010, will be susceptible to change by statutory instrument under the clause. That would be an entirely unacceptable situation. There are many different ways in which the constitutional potency and scope of the correcting powers provided under clause 7 can be circumscribed, and we support many of the amendments tabled to the clause that share that same basic underlying objective Amendments 32 and 25 are the means by which my right hon. and hon. Friends and I have attempted to limit those correcting powers. Amendment 32 would diminish the potency of the delegated powers in the clause by removing the ability to modify or amend the Act itself. I listened to what the Minister said about the schedules and how they dictate things, but I would argue that there seems to be a difference—if Members wish to direct their attention to it, this is on pages 39 and 43 of the Bill—between the process that applies to clause 7 and that which applies to clause 9, with respect to whether a vote in the House would be required for Ministers to amend the Act itself. Perhaps the Minister will elaborate further on that in his response Amendment 25 would reduce the scope of the powers by constraining their capacity to reduce rights and protections, while amendments 350 and 334 would buttress amendment 25 by putting specific limits on the powers in question by requiring Ministers to pay full regard to the animal welfare standards enshrined in article 13 of the treaty on the functioning of the European Union and to guarantee that the air quality standards and protections that are currently underpinned by EU law are maintained in practice following our departure. Given how widely drawn the powers in clause 7 are, coupled with their potency and scope and the inherent subjectivity of the language in subsection (1) in key respects, ministerial assurances and promises to go away and have a cosy chat, as we have had on other days, are not good enough in this instance. The powers entail a significant transfer of legislative competence from the legislature to the Executive and open up the real possibility of substantive changes being made in policy areas that previously were underpinned by EU law. Restrictions on the powers must be placed in the Bill, whether through amendment 32 or 25, or some other combination of amendments. I look forward to hearing from the Minister not only that the Government now accept as much but what they intend to do about it On the new clauses and amendments that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities, Ministers have been at pains to point out throughout this process that many of the corrections to retained EU law made under the correcting power in clause 7 will be mechanistic, textual or technical in nature. That will undoubtedly be the case, but many others will not be. As other Members have noted, the powers in clause 7 allow for not only the creation of new UK public authorities using the affirmative procedure but the transfer of EU regulatory functions to existing UK institutions using the negative procedure. However, in neither case does the clause 7 power as drafted ensure that retained EU law will be made operable in ways that replicate and maintain, in so far as is practical, all the existing powers and functions exercisable by EU entities. As a result, the clause does not guarantee that the powers and functions of entities such as the EU Commission or other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day Amendment 342 would address the problem by making it clear in the Bill that regulations to which subsection (5) applies must, again in so far as is practical, ensure that the standards, rights and protections currently maintained by EU institutions, or other public authorities anywhere in the UK, continue to exist in practice after exit day and that the UK competent authorities that are overhauled or created for that purpose have the resources, expertise and independence required to carry out their task effectively. That they do so is crucial not only for legal certainty and continuity and to ensure continued confidence in UK products and services, but as a guarantor of stability and redress for citizens and civic bodies in key areas in which there is a clear risk that Brexit will leave a governance gap The need for such an amendment is particularly important when it comes to the environment. I take the point made by the right hon. Member for West Dorset that we discussed this matter in Committee at length on other days. Of course, it relates intimately to the environmental principles, although they are outside what is covered by clause 7. We have tabled new clause 63 to require the Government to establish new domestic governance arrangements, following consultation, for environmental standards and protections and, crucially, to ensure that the new arrangements provide robust enforcement mechanisms when environmental requirements and standards are not met The Government’s thinking about this policy area has clearly moved on from their early insistence that existing regulatory bodies, parliamentary scrutiny and the use of judicial review alone would be sufficient to provide oversight of Government and public body conduct. The pledge by the Secretary of State for Environment, Food and Rural Affairs to create a new environmental watchdog and to consult early in the new year on its scope, powers and functions is welcome, but as things stand we have no clear indication of the watchdog’s scope, powers and functions; no clarity on whether the Government are seeking agreement with the devolved Administrations with a view to implementing similar measures in their jurisdictions; and no sense of whether or not the watchdog will be able to levy credible sanctions or provide for effective enforcement of breaches.