Ms Stella Creasy
MP for Walthamstow · Labour (Co-op) · United Kingdom
“I thank the Foreign Secretary for his clear-sighted commitment not only to talk about a two-state solution, but to actually try to act to achieve it, as the only foundation of a safe Israel and a free Palestine.”
“Could he reassure the House that we will not acquiesce and bend to such pressure, and that the only action that could ever be acceptable to us to make us contemplate reversing this ban would be a halt on the E1 development and a permanent end to settler violence?”
“I start by paying tribute to the new Minister, my hon. Friend the Member for Vauxhall and Camberwell Green (Florence Eshalomi), for all the work she did on the Housing, Communities and Local Government Committee on these issues. I know that she will do a brilliant job in this role.”
“I do not really understand the technology, but I know that he does, and I understand and share his fear accordingly. We come here today to debate this Bill because we all know that trust is a bygone issue in our politics.”
“We would welcome her having that conversation, which might be more illuminating than whether she is concerned about Zach Goldmsith’s leaflets. I add my support to the amendments tabled by my hon.”
“From today, if we do not take a stand with this Bill to tackle the ways that money has infiltrated our politics, the risk is that they will think we are acting in the interests of our own back pockets.”
The complete record
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“Q You make a case for being able to change your mind yourself and having a process for changing your view on this legislation. Would it not be beneficial for this place to have powers to change the minds of Ministers? Like you, Ministers may make decisions that they come to regret. Martin Howe: Sorry, I have not changed my mind on the relationship between retained EU treaty law and other EU law. The point is that that should be converted into domestic law, but our domestic legal system can cope with the question of precedence of one law over the other. I have never been in favour of indefinite retention.”
“Q I will just say that we are all free to take advice from competing lawyers, but I do not think we are free in this place to treat our witnesses with contempt, regardless of whether we agree or disagree with what they have written. All the lawyers have talked this morning about the approach of working with businesses and whether a regulatory burden could be created, which clause 15(5) is designed to avoid. We do not have any business witnesses coming forward, but we have heard that businesses are talking about risk being a drag on growth. Can you give us some examples of where you have worked with businesses with legal uncertainty? You have all talked about uncertainty, but can you explain what it could do to your clients?”
“I would consider expanding it, and I would not get too troubled by the fact that moving from A to B—that is, where we are now to where we want to get to—potentially involves some element of legal uncertainty that would not otherwise arise. If we wanted perfect legal certainty, we would do nothing.”
“It is hard to hear you. I wonder whether it is because you are between two microphones. I am sorry. Barney Reynolds: One of the EU’s methods of interpretation is its version of the purposive method of interpretation, which we also have—we look at Hansard and so on when things are not entirely clear—but it is very limited in its use here. We basically go on the meanings of the words on the page, whereas in the EU, the purposive method, which they leap to pretty quickly in the courts, involves trying to work out the intentions of the legislators behind provisions. In the EU context, that includes ever closer union and various other purposes that are alien to our country and our system—as it now is, at the very least. As I say, it seems to me that the sooner we get on with it, the better. Clause 7(3) is pretty anodyne.”
“And yet, very unlike common law reasoning, one would not actually have a judgment from below with a factual position working out how the case law is applying to a certain set of facts, so it is even harder for the judges, because you are asking them a pure abstract question: should we depart as a matter of law from that EU case law without understanding the full factual matrix? That is very unlike common law reasoning where you incrementally grow and apply to the facts.”
“Although they have got these factors here that are laid out, they do not really deal with that aspect at all. That, again, puts the judges in a difficult position, because they have not got the guidance from Parliament. They have got this body of law—the acquis of the retained EU case law—but do not really know quite how to push it on, or not push it on. I think it will make life quite difficult for the judges. Jack Williams: As a footnote to that, on the Court of Appeal for the reference procedure, the Court will not even have decided facts, so it is quite ironic that what is being imported with the national reference procedure is like the preliminary reference procedure under EU law at the moment where you ask a court a legal question—an abstract legal question here—on whether to depart from retained case law.”
“The second point, as has been made by both my colleagues already, is that EU case law necessarily involves a consideration of the way that the Court of Justice of the European Union looks at regulations and its previous case law. In my view, the CJEU is a much more active court in terms of both interpretation of EU instruments, to use the phrase that is in the Bill, and its previous case law. It tends to develop principles derived from both instruments and case law in a rather more positive way than the UK courts do. I can only speak for the English courts, of course. The problem, therefore, that the judges are going to have to deal with is: do they carry on with that approach, as in the case law of the EU, or do they somehow retreat from that?”
“I think that we will end up with a lot more cases on those sorts of issues. Sir Richard Aikens: I agree with what Jack said. As I read clause 7(7), the factors that the court must have regard to are not exclusive. In other words, they can have regard to other factors as well, which Parliament has not identified and has left to the judges to decide whether they might be relevant. So I would like to make two points. First, this is not exclusive, and it may well be that, in future cases, appeal courts will introduce other factors, maybe on a case-by-case basis, which are only relevant to that particular case, but there may be a development of more general factors, which, once you get that at a Court of Appeal or above level, will then tend to be repeated thereafter.”
“What I would say is that it puts them in a very tricky political position because they will be asked to depart from case law and make all sorts of policy decisions. That is slightly ironic when a lot of the political discussions over the past few years have been to save judges from stepping into the political arena. I very much agree with Sir Richard that the outcome of the Bill is to generate litigation, because the vast majority of the laws that come out of it will be secondary laws, which are susceptible to challenge. One will be arguing, for example in relation to clause 15, whether the similar objectives were being met by regulations that replaced the earlier retained EU law, and whether that has been met by the new rules. That is an incredibly difficult task, and one that could end up in lots of litigation.”
“Perhaps we start with Jack, as you look most interested by the question, then go across the panel. Jack Williams : It is extraordinarily difficult to think of ways that the Bill tells judges exactly how and how not to do things. Ironically, one of the ways that the Brexit legislation is going is to codify almost into a civil system exactly how judges should interpret certain matters. The roles of the court are only in clause 7 provisions, which say in their own terms that they may have regard to certain things, but do not give a definitive list. Those that are listed are nudging towards departure, as I said earlier. I do not think there is anything in the Bill that gives judges the power to preserve or save certain rights.”
“Q Thank you, Sir Gary. It is a pleasure to serve under your chairmanship this afternoon as much as it was this morning. This is a very interesting discussion about how we make law. You are talking about how case law then informs outcomes for our constituents. I am struck by the picture that you paint of the powers that might then fall to judges by default, without clear ministerial or parliamentary direction. Perhaps Abu Dhabi, as part of an authoritarian state, is not the best example for us democrats of how we might wish to proceed. I wonder if you could talk a little bit more about some of the barriers created in the Bill for judges because of the lack of parliamentary scrutiny, and if there are other examples of legislation that you have seen that may offer us a way forward.”
“That is just additional complexity, which then hits civil servants trying to work out which powers they should be laying instruments under, and which scrutiny measures apply. For people who have to interpret and implement the law, it becomes ever more difficult. I hope that one aspect of the review process would be to simplify some of those areas, with things like consolidation and so on, to help the process. However, given the scope and scale, I do not think that can be done by December of next year.”
“Clearly, one of our problems is that the complexity of law now, and the layering of regulations on regulations, coupled with inadequate scrutiny procedures, makes the whole scrutiny process incredibly difficult. Another problem is that the breadth of the powers in Bills which enable Ministers to take action, but do not define on the face of the Bill the limits and scope of that action, are very broadly drawn. That makes scrutiny incredibly difficult. We also have amendment of legislation going through both Houses, and that adds layers of complexity. Particularly in the House of Lords, Members seek to introduce scrutiny constraints of the kind we have talked about in respect of the European Union (Withdrawal) Act.”
“Originally, Ministers told me that the order was not made under section 2 of the European Communities Act 1972 and therefore did not fall within the scope of clause 1 of the Bill, but they issued me with a ministerial correction to admit that it did. Have there been other instances of Ministers not knowing the consequences of their legislation? What impact do you think that has on our ability to scrutinise legislation as parliamentarians? Dr Fox: I cannot give you a number, but I am sure that there have been corrections of that kind. We also see that in respect of statutory instruments, where instruments have to be withdrawn and re-laid because of errors.”
“Q Another question we could ask is whether it is reasonable for Parliament to ensure that Ministers know the consequences of their legislation. What the National Archives work shows is that that is possibly not the case with the Bill. I say that as someone who this week received something I had never, ever received before—I wonder, Dr Fox, whether you can advise me if this is common: a ministerial correction to an answer to a written question. The written question was to the Department for Environment, Food and Rural Affairs about the application of the legislation to the Avian Influenza and Influenza of Avian Origin in Mammals (England) (No 2) Order 2006.”
“If that is so, again as you have heard, the consequence of the Bill is that the law will fall away altogether on the sunset date, and you will not have the option of making a correction. Ministers, if they wanted to, would have to come back to Parliament with a Bill to replace or change the law. That is the complexity of the exercise.”
“What was being done then was an essentially technical exercise to keep the pre-existing law and to make it work as far as possible, in a way that provided continuity and certainty for users. What we are talking about now is an exercise of a completely different order. This is about changing policy, potentially getting rid of some laws and, in some cases, deciding what replaces them. This is an immensely more complicated exercise even than the one that has already been done, and the civil service will not have started with a pre-existing list, however authoritative they are trying to make it. There is therefore a risk that as Departments perform an audit, or as the National Archives help with that process, additional laws will be found. There must be a risk that some will be missed altogether.”
“As soon as we left, we had to begin the process set out in the European Union (Withdrawal) Act 2018, which was about identifying what retained EU law needed to be changed in order for it to work operationally and technically. That was the process that was done with the 2018 Act, and it involved, as I think you have heard, many hundreds of sets of regulations to cure deficiencies in the language of that legislation. That was complicated enough, and it is possible that things were missed. There are certainly examples of some changes having to be made multiple times because they were not got right the first time. That was complicated enough but at least, if something was missed, the law did not fall away altogether; it could be corrected later.”
“Sir Jonathan Jones: I am not in the civil service, as you know; I am on the other side, advising clients about what the effect of the Bill will be on their businesses and so on. This was always going to be a very complicated exercise, including for the civil service. We are leaving one legal order and, in one sense, we are out of it—we are free—but the legal constitutional consequences of that were always going to be very complicated, because we had this huge body of law that over decades had been integrated into UK law. We were not keeping a running tally throughout that time of the laws that we might one day want to change, because they had come from a particular source. They were enmeshed it all sorts of different ways with UK law.”
“Q Sir Jonathan, a similar question to you: what impact does that have on the ability of Departments to operate and, indeed, on Parliament’s ability to scrutinise, if it is not clear what legislation is effective? For example, the dashboard does not currently contain the Conservation of Habitats and Species Regulations 2017, but that is a piece of European retained law that will have an impact on environmental concerns. In your experience, what is the impact on civil servants being able to advise Ministers and to provide information to Parliament? I note that Ministers told me that the dashboard is an authoritative but not comprehensive list of laws to be affected. What impact might those absences and omissions have on the ability of civil servants to do their job for us?”
“We are really concerned about the array of rights that have been set out so far today. There are lots of health and safety laws as well and things like protection for pregnant workers—there are lots of protections—but, so far, we do not know. It seems we are taking a shortcut to an unknown destination.”
“Q I thought the Minister helpfully set out a whole range of employment protections that are rooted in retained EU law when it comes to women’s rights. Removing the foundation of those laws that have been applied in UK law creates the legal uncertainty that you alluded to. The answer is therefore a commitment, clarity and a confirmation to all those who depend on these laws that, as the Government say, they are going to be retained. But exactly which ones are going to be retained? What is the point of this legislation if we are just going to delete everything and start again? Have you, the organisations that work on employment rights, had any confirmation or commitment about these specific pieces of legislation? Tim Sharp: No, we have not had those conversations. We are still in the dark.”
“Q Just so we are clear, the reason why that bank holiday entitlement exists in UK law is because EU legislation required it, and we have written proposals for bank holidays into law on the basis of EU legislation. If we remove that basis and that law is not retained, could an employer challenge the right of an employee in the next year to take a bank holiday? Shantha David: Just to clarify, the 20 days are derived from Europe. The additional eight days were because, historically, those eight days were incorporated into the 20 days. To ensure that people had the additional eight days of bank holiday, they were allowed for under UK law, but it is contained within the same piece of legislation, which is where the confusion might arise.”
“Q In terms of my specific question, it seems we would be going down to 12 days. Could an employer challenge the right of an employee to take a bank holiday if the Government do not rewrite this piece of legislation? Shantha David: I think it is worse than that, actually; we will not have the 20 days at all. We will have the eight days of bank holiday only if they are taken out of the current regulations, presumably, and put somewhere else. If the regulations go altogether, regulation 13A, which talks about the bank holidays, will go with them.”
“Q I appreciate that this is something that people feel strongly about, because they are concerned for their constituents. Can the representative of the trade unions tell us what it was like when the Beecroft report came out? It talked about some of these issues, so if there is a concern to get not just a promise but a commitment in writing to protect these rights, would such an amendment be welcome? Would that be enough, given that Beecroft shows a direction of travel that this Government have previously considered?”
“But it is relevant as an element of employment rights. Shantha David: The difficulty we have here is the speed at which this thing is happening. It is not about whether you want EU-derived legislation to exist; it is about being able to have a considered view on the employment provisions that exist for workers, and to ensure that employees and employers are not mired in litigation forever and a day. The costs of this are incredible, and I think that is not completely understood. The costs of litigation are profound. If there are to be clear exceptions, and if it is very obvious that certain employment legislation will survive this cull, perhaps that should be specified. That would be very helpful.”
“Q David, may I turn to you? Earlier in this session, you will have heard me say that I had a ministerial correction for the first time ever as a parliamentarian—old dogs and new tricks, all the time— [ Interruption. ]”
“The Senedd and the Scottish Government, who have responsibility for them, are uncertain as well, because they are taking their lead from DEFRA. Yesterday the Welsh Government said they were not minded to work out which laws were devolved, which were not, and which came under retained law. They were going to leave that up to the UK Government. That just fuels the uncertainty.”
“I mentioned at the beginning of the session that there are 44 different animal welfare laws, but that is my assessment; if you look at the dashboard that the Government have set up, there are 16 that are not on the dashboard but are on my list. That gives you an indication of the uncertainty, although to be fair, the dashboard is one of the most opaque measures of what the Government are doing. It does not seem to be in alphabetical or chronological order, and going through the 570 laws under the Department for Environment, Food and Rural Affairs tab is quite onerous. I think it is uncertain about where it is. The Bill applies not just to the UK, but to Wales, and probably 31 of 44 laws in my area of animal welfare are devolved.”
“Q Thank you, Chair. We were not actually discussing shrimp when we were rudely interrupted by the Division bell; we were just about to talk about avian flu. David, could you update us? Originally, Ministers said that the requirements around avian flu control—something I feel strongly about, because we have it in my local community—were not within the scope of this legislation, but they have issued a ministerial correction to say that it is. That seems a good example of legal uncertainty. What is the practical impact of having legal uncertainty about the requirements when it comes to environmental protections? Could you give us examples of where there has been legal uncertainty? David Bowles: There are many examples.”
“David Bowles: It could create huge uncertainty. Two things need to be worked out. First, what does retained EU law mean? As we saw today from the article in the newspaper, there seem to be more such laws coming forward. Secondly, which are devolved and which are not devolved? There could be a huge discussion about that. The Bill will have huge implications. There is not just the devolution issue, but the common frameworks issue, which is how the three Governments work out how to move forward on specific pieces of legislation. There is also the matter of the United Kingdom Internal Markets Act 2020, which is the legislation that allows free trade within Great Britain. There are huge implications for all those issues.”
“Q On the point about uncertainty and the approach we should take, you all seem to be making the case for a sunrise clause rather than a sunset clause, so that we start with everything and work backwards. You have found 16 laws that are definitely not on the dashboard. I feel inferior now; I found only one: the Conservation of Habitats and Species Regulations 2017. However, the Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 is on the dashboard. From the point of view of layperson who is not legally qualified, how much variation is there between those orders? What sort of omissions could we be talking about? What uncertainty might be created when there are gaps because laws are not on the dashboard? “Enmeshed” was the word that Dr Benwell used?”
“That is why the Bill needs to be watertight on these issues.”
“Ruth Chambers: That is a really important question. Clause 15 and how it defines “burden” is one of our biggest concerns about the Bill. If you look at the passage that defines “burden”, it is everything from an administrative inconvenience to something that causes issues to do with profitability. What does it actually mean? It also does not seem to sit readily with the answer that DEFRA Ministers have given, which is that their intention, in reviewing that body of rules, is to improve environmental outcomes. How does that sit with reducing regulatory burdens? Not many weeks ago, some Government Ministers were suggesting that environmental protections were regulatory burdens and should be removed. That is not the case, we believe, with the current Government and current set of Ministers, but it shows that things can move quite quickly.”
“Q Finally, a big question to all four of you. We were all promised that on leaving the European Union we could have higher standards, particularly in environmental protections. I think that people across the House would want them; we are all very keen on defending them. Clause 15(5) talks about burdens. What is your interpretation of where a burden might impact our ability to provide environmental protection? I am thinking particularly of town and planning orders; environmental requirements are part of the planning process. When you read about that concept of burdens, do you have concerns about maintaining standards, let alone increasing them? what impact could that word have on laws that are not immediately considered to be environmental, but do have an environmental impact? We will start with you, Ruth, to give David a break.”
“We have subsequently agreed ways in which Governments in the UK should work together to push through potential challenges, and common frameworks and the like are supposed to deal with some of these issues. I wish the UK Government would live up to their promises to work with the devolved Administrations across the UK, as I am keen to do. They have an opportunity to do so by respecting the Sewel convention in this particular piece of legislation.”
“Q Angus, I understand why you suggest that the challenge is that we need a practical response because our constituents will cross borders, but so will Dikerogammarus villosus, which is a killer shrimp. Although that species has not been found in the River Tweed, is it not better—rather than not involving devolved areas—to look at how we could redo the whole process so that constituents and shrimp crossing borders do not come a cropper? Angus Robertson: I am all in favour of good intergovernmental relations. I have been doing this job since last year, and I have gone into conversations in good faith about any and every potential challenge. If that is one of them, I am happy to do so again. The wider point is that we are supposed to have a range of measures that we can use to make devolution work, including the Sewel convention.”
“Surely all of us in the House will be concerned about the sexual assault of children of any background. Will the Minister publish the details of all these cases, including how many incidents of violence or sexual assault against children in these hotels have occurred in the past year, what action has been taken, and crucially, what safeguarding the private companies that run these hotels must undertake? If he will not publish those details, that tells us what he thinks about those children and the responsibility that we all have to them.”
“The second half of this urgent question was explicitly about the safeguarding of accompanied minors in the hotels. That matters because there are thousands of children—verified children—in those hotels. Last week, we learned that two of them—one a child under the age of 13—were sexually assaulted in a hotel in Walthamstow, and more cases of sexual assaults on children in these hotels have since come to light. We are all clear that those who committed those crimes must be held responsible. We all have duties to those children, just as we have to any other child under state protection. When I asked the Home Secretary about this, she made a cheap jibe about hotels. The Minister did not even mention those children in his response. He has not yet given us a straight answer.”
“If the Home Secretary is so confident that that is meeting her duty of care on behalf of the country, will she publish the contract requirements for how children are housed in hotels and the precise details of the services that they should expect and which we should be proud of as a country dealing with those seeking asylum?”
“There is nothing patriotic about making children suffer, but that is exactly what is happening as a direct result of this Home Secretary’s failure to get to grips with processing asylum. She talks as if the hotels are somehow a better option. In my constituency there is one with 150 children squeezed alongside another 350 adults, seven or eight to a room—no notice to the local authority that they would be placed there; no cooking facilities; no school places for these primary school-aged children; no clothes for most of them, especially for the winter weather; no play facilities, if they are allowed out at all from these prisons; no safeguarding as far as any of us can see.”
“Will the Minister be honest with the House? He says that the Bill will allow us to have the highest standards, but clause 15 formally confirms that we can only go down, and we can only have a race to the bottom, because it talks explicitly about not increasing burdens. Will the Minister tell the House who voted to lower our environmental protections in the referendum?”
“Might one of the reasons why businesses are so confused about the impact that the legislation will have be because the Minister is? He tried to claim to the House that all the laws affected are published on the dashboard and will have full transparency. However, 24 hours ago in answer to my written question, the Minister admitted that the dashboard provided an “authoritative, not comprehensive” list. Does my hon. Friend agree that, when businesses and consumers are already struggling with the cost of living crisis, the last thing that we need is to not even know what a piece of legislation is deleting?”
“Does the right hon. Gentleman recognise that some of us may be a little bit sceptical about the definition of democratic engagement that he has just set out? He is arguing that, for example, taking away laws that require cosmetics not to contain cancer-causing chemicals or laws on illegal trading—as well as maternity rights and TUPE—is a matter that does not require the scrutiny of the House, but only that of statutory instrument Committees. If he had been so wedded to restoring democracy, might he not have at least written the affirmative resolution procedure into these statutory instruments? Why he is taking back control, not for this House and the great democratic institutions—and he is now joining us on the Back Benches—but to No. 10?”
“It is simply not true to say to the British public that, through this Bill, Brexit is giving the House powers—let alone the trade war it could easily start, because we signed agreements in good faith with the European Union under the TCA that we would have a level playing field on areas such as food safety and employment rights. The Bill could lead to retaliatory tariffs. What the hon. Member for Taunton Deane and her colleagues should reflect on most of all, perhaps, is clause 15, which enshrines deregulation. I would be with her in the Lobby on introducing higher environmental standards, but the Bill formally requires that that cannot happen. The direction of travel is only one way—to water down and reduce rights.”
“Of the 2,500 pieces of law that are being ripped up, on which we have been dependent for decades, 800 have no direct ministerial lead to even worry about whether we should keep them. Ministers will decide what happens to those pieces of legislation—they can water down protections and any promises made to the hon. Member for Taunton Deane, or simply drop them without any form of scrutiny. I am disappointed that the right hon. Member for North East Somerset is not in his place, because those of us who are democrats believe passionately that the only people who are anti-democracy are those trying to take back control to Downing Street rather than to this place.”
“In which case, we must all ask, “What help are they getting?” We have talked about 570 different pieces of legislation from DEFRA to be revised. At the moment, there are three DEFRA civil servants dealing with 570 pieces of legislation. It is the same across other Government Departments: two officials in the Department of Health and Social Care dealing with 137 regulations covering healthcare; nobody in the Department for Work and Pensions, which has 208 regulations to rewrite; and nobody in the Treasury, which has 602 regulations to review—snog, marry, avoid—in the next year and decide whether we will keep, or amend, them. The Department for Transport could not even confirm how many staff it had working on this issue. It does not even know who is responsible for it. That is not really a surprise.”
“Secondly, one might agree that all those things need to be up for grabs and that it no longer matters—I would love to see the referendum leaflet that said abolishing paid holiday leave would be a good thing; I will sit down if the Government can show me that—but the Bill hits delete through a sunset clause, abolishing everything all at once. As my right hon. Friend the Member for Leeds Central (Hilary Benn) says, that creates a power for Governments to abolish pieces of legislation just by doing nothing, with no judicial review powers if those rights are important. I am sorry that the hon. Member for Stone (Sir William Cash) is not here. The Bill hands powers to those very Ministers who were in the Council meetings he objected to, to make those laws.”
“Member for North East Somerset is not in his place, because we could have a conversation about exactly how the EU protected women’s basic maternity rights against decisions by the UK Government. On part-time workers’ rights, the hon. Member for Taunton Deane says she has had assurances from the Government. Well, I thought the Conservative manifesto was an assurance about what the Government were going to do, but that seems to have been ripped up. The Bill will give the Government carte blanche powers across 2,500 pieces of legislation and 300 policy areas. Can she really, hand on heart, be confident that all of those will be retained? She does not have in the Bill any recourse if those pledges come to nought, so she is taking a huge gamble.”
“Clearly, Government Departments have not looked at the legislation on which they have depended. Disease control for bird flu is suddenly up for abolition, along with compensation rules for lost luggage and delayed trains. I guess if a Government are dealing with privatised rail industries and are unable to help them, they think that removing those basic consumer protections will somehow be good for them. However, they should be honest with our constituents if that is what they intend. The payout that comes if someone’s firm goes bust and the entitlement to 50% of their pension pot—let alone TUPE protections if their job is outsourced, paid holiday rights and maternity rights—are up for abolition through the Bill. I am sorry that the right hon.”