Consequential, transitional, transitory and saving provision

Part of European Union (Withdrawal) Bill – in the House of Commons at 6:34 pm on 17th January 2018.

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Photo of Keir Starmer Keir Starmer Shadow Secretary of State for Exiting the European Union 6:34 pm, 17th January 2018

This Bill has never been fit for purpose. It was not fit for purpose when it started its life last year, and after 64 hours in Committee and 10 hours on Report it is still not fit for purpose. We have repeatedly pointed to six serious defects in the Bill. We pointed them out when the White Paper was published 10 months ago, in March last year. We pointed them out again when the Bill was first published in July last year, and I wrote to the Secretary of State setting out those six serious defects and inviting him to address them before the debate on Second Reading. He declined to do so. We pointed them out on Second Reading in September and we pointed them out again in Committee, but we have been talking to a brick wall. The Government have not accepted any of the points that the Opposition have made. They have conceded some ground on their own side, but they have not taken seriously the propositions and arguments that we on this side have put forward. In my experience of dealing with Bills, that is unusual. They have simply robotically voted down all Opposition amendments.

Let me start with the shenanigans surrounding exit day. For purely political reasons, the Government introduced a gimmick amendment to fix exit day in the Bill at 11 o’clock on 29 March 2019 for all purposes. I have no doubt that if a vote on that amendment had been taken on day one in Committee, the Government would have suffered another loss on this Bill because it was so obviously a defective amendment. It was absurd in so many respects that it is hard to know where to start. Let me deal with clause 6(1), which states:

“A court or tribunal…is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and…cannot refer any matter to the European Court on or after exit day.”

So clause 6(1), as amended, means that there cannot be any reference to the European Court of Justice after 29 March 2019. However, in December, the Government committed in phase 1 to allowing EU citizens to refer to that Court for another eight years after article 50. Their amendment disables that. It is inconsistent with phase 1. Moreover, we have consistently said that there will have to be transitional measures in relation to article 50, and they will have to be on the same basic terms as we have now, which means staying in the single market and the customs union and under the jurisdiction of the European Court of Justice. So putting an amendment into the Bill that disables the European Court of Justice is inconsistent with the transitional measures.

I acknowledge that the Government have accepted—as they had to—an amendment to their own amendment, but that does not remedy the defect. All it does is tidy up the problem if there is an extension of article 50. It does not enable transitional arrangements on the same basic terms as now, which is what will be needed, and it does not enable EU citizens to exercise the rights that the Government guaranteed to them in the phase 1 agreement. So we are now in a ridiculous position.

I have pretty well given up on predictions, but it seems to me that the Government will now be bound to introduce subsequent legislation to amend this Bill before it comes into force. They will have to do that. It is one thing to pass a Bill and say that there might come a time when it has to be amended. It is another thing to pass a Bill knowing that between now and its coming into force, they will have to intercept it again to disable a provision that they are putting into the Bill. That is how absurd this has got—[Interruption.] Well, let us see whether there is an amendment to repeal this provision next time we are here. If there is not, we will lose the jurisdiction of the Court just at the time when the Government have promised EU citizens they will continue to have it.

As I made clear on Second Reading, thousands of provisions are being converted into our law, and the charter of fundamental rights is apparently the only one that cannot be converted. That is nonsense. The Government are being driven by ideology, not law.

The Government’s defence of their position is in tatters. The Secretary of State says it does not matter because the charter never added any rights, overlooking, of course, the case he brought against the then Home Secretary. His junior Minister, Suella Fernandes, whom I welcome to her place, says the complete opposite. She wrote an article in The Daily Telegraph expressing her concern and objecting to the charter precisely because it does add rights. I do not think that is the only issue on which she agrees to disagree with the Secretary of State. I do not know what team meetings are like in these early days, but I would like to be a fly on the wall as they try to reconcile their irreconcilable views on how we deal with Brexit.

Of course, the truth is that some of the rights are covered elsewhere, but others are not. The exercise the Government carried out proves the point—the Government’s position is deeply unpersuasive. The whole point of the charter was to gather all the rights and protections that existed discretely in other places and put them into one document. The Government have now decided that the best strategy is to scatter them back to where they started.

When pressed forcefully by Mr Clarke on the simple question why on earth the Government are doing this, the Solicitor General was driven yesterday to the answer that the sole intention is to avoid chaos. Well, that is what the charter looks like—a slim document that sets out the rights clearly—and this is the Government’s alternative: 73 pages of material telling people where to look for other sources on their rights. One is clear and the other is chaos.

The delegated powers in this Bill are far too widely drawn, and they are still subject to far too little parliamentary scrutiny. In Committee and on Report, the Government have ignored concerns that the delegated powers should be used only where necessary, that enforcement mechanisms should not be abolished by delegated powers and that rights and protections should not be taken away by delegated powers. The proposed shifting Committee—sifting Committee simply is not sufficient to scrutinise—[Interruption.] I had “shifty” on my mind when I looked up momentarily and saw the Secretary of State.

That is not the only cause for concern. Until exit, many EU-derived rights and protections are protected because of our membership of the EU. The protection falls away as we leave the EU, and that is not an idle point. The Bill leaves areas of employment law, such as the transfer of undertakings, annual leave regulations and the working time directive, vulnerable to Ministers with wide delegated powers. Those areas will no longer be protected. Our simple proposal that primary legislation should be used to alter those rights has been rebuffed at every turn.

There is a pretty united view on both sides of the House that clause 11 is defective, and Scottish Conservative Members have argued that the clause is not fit for purpose. The Government said they would table an amendment on Report, which has come and gone with no amendment. Unless the Lords puts this right, a Bill with a serious defect will be passed by Parliament. The Government might have a defence if this issue had arisen at a late stage, but this is one of the issues we raised in March 2017, and it has been raised by everyone who has read the Bill since. In 10 months, there has been no progress. Stephen Kerr, a Conservative, said yesterday that he is deeply “disappointed, dissatisfied and frustrated”. As he rightly said, it is not appropriate for the Government to blame outside influences for the lack of amendment on this issue. Members on both sides of the House will have to ask themselves whether they are willing to wave through a Bill that they know will weaken the devolution settlement of the devolved Administrations. On this side of the House, we are not willing to take that risk.

Let me turn to the sixth issue, which is the meaningful vote on article 50. This is the one area where change has been forced by a vote in this House. The Government of course fought that tooth and nail. To those Conservative Members who voted on that issue and pushed it, and were as a result described as “traitors” and “mutineers”, may I just say thank you? I thank them for standing up for what was right when others told them to stay sitting down. That vote was an important step forward. As we have long maintained, it is crucial to ensure this House has a say on the article 50 deal. How it will operate is still not clear, so let me put the Government on notice: we on this side of the House, and I am sure some on the other side, will be watching like hawks for any backsliding. This has been described as “a meaningful vote” and it must be meaningful. So let me be clear: if the Prime Minister thinks she can come to this House, put forward her proposed article 50 deal, lose that vote and carry on regardless or walk the UK off a cliff with no deal, she has got another think coming.

In conclusion, I thank all those who have spoken in these debates. I thank both Front-Bench teams, particularly my own, who have done so much hard work. I also thank the Clerks of the House and the Public Bill Office for the extraordinary support they have given to my team and Members from across the House. From this side of the House, may I also thank the Department for Exiting the European Union staff, who have worked so hard? They may or may not have liked the instructions they were working to—I do not know that—but they have worked very hard on all the tasks that have been given to them, and we sometimes forget the amount of work they put in. At times, this House has been at its best during the passage of this Bill, while the Government have been at their worst. They have been unwilling to listen to reason, unwilling to reflect on the obvious defects in this legislation and unwilling to ensure this Bill is fit for the incredibly important purpose it seeks to achieve. The Government have simply ploughed on. They have sidelined Parliament and made a mockery of the phrase “Take back control”. For those reasons, Labour will vote against this Bill tonight.