Points of Order
Thursday 13th July 2017
(8 years, 3 months ago)
Commons ChamberEuropean Union (Withdrawal) Act 2018 Read Hansard Text
Chris Bryant (Rhondda) (Lab)
On a point of order, Madam Deputy Speaker. I think that in a moment the European Union (Withdrawal) Bill will be presented. It has already been online on the parliamentary website for the last hour and a half. This is a complete breach of the Standing Orders of the House: the convention is that it is presented to the House before it is presented to anybody else. Also, we cannot get a copy of it in the Vote Office, but we can get a copy of it online. I hope that there will be an investigation into this matter.
Madam Deputy Speaker (Mrs Eleanor Laing)
I am grateful to the hon. Gentleman for bringing this matter to the attention of the Chair, and I understand that indeed the text of the European Union (Withdrawal) Bill has been located on the Parliament website this morning, in advance of its presentation. This should not have happened, and I can assure the hon. Gentleman and the House that an investigation is currently under way into this most regrettable matter.
Christian Matheson (City of Chester) (Lab)
Further to that point of order, Madam Deputy Speaker. Has there been any indication from the Government Front Bench whether a Minister will come to the House to apologise for that transgression?
Madam Deputy Speaker
I have said that the matter is being investigated, and I am sure that the Treasury Bench has heard the points that have been made. Interruption.] Order.
Several hon. Members rose—
Sir Desmond Swayne (New Forest West) (Con)
Further to that point of order, Madam Deputy Speaker. Do Ministers have any responsibility for the website of the House? [Interruption.]
Madam Deputy Speaker
Order. [Interruption.] Order. The House is lively this morning. Let us have a little order. I have already said that those who are responsible are carrying out an investigation, and in due course I am quite certain we will be able to report to the Chamber just what went wrong and make sure it does not happen again.
Mike Gapes (Ilford South) (Lab/Co-op)
Further to that point of order, Madam Deputy Speaker.
Madam Deputy Speaker
Mr Gapes, is it really further to that point of order, because I have answered the point of order?
Mike Gapes
During the investigation, will Government Ministers be questioned about how the House of Commons website obtained the document?
Madam Deputy Speaker
I have already answered that point. We have important business to get on to.
Sir William Cash (Stone) (Con)
Further to that point of order, Madam Deputy Speaker. Will you confirm that, immediately after the presentation of the Bill and its First Reading, the Second Reading will deal with the principle of the Bill, according to “Erskine May” and all the rules of the House? Will you also confirm, with respect to this particular Bill, that although some do not seem to have seen it yet, it is about leaving the European Union and repealing the European Communities Act 1972 and that anyone who votes against its Second Reading will be in breach of that principle?
Madam Deputy Speaker
As the hon. Gentleman and the House know, the Bill in question is about to be presented. When the Minister presents the Bill, it will then be there for all to see. Each Member can make their own consideration of what the Bill is about and how they would like to interpret it. If they wish to try to amend it, that is what Parliament is for. I am quite sure that we will have plenty of discussion about that in the forthcoming weeks and months.
Grahame Morris (Easington) (Lab)
On a point of order, Madam Deputy Speaker. I seek your advice on an issue that was debated in Westminster Hall on Wednesday 5 July —namely, the Women Against State Pension Inequality campaign. The debate was very well attended, and the resolution to accept the motion was rejected. Given that we have no Opposition day debates and no opportunity for Back-Bench business debates before the recess, would it be possible to have a deferred Division on this question so that Members can have a recorded vote on it?
Madam Deputy Speaker
I am grateful to the hon. Gentleman for giving me notice of his point of order. It is also refreshing to have a point of order that is a point of order. My understanding is that, following the debate in Westminster Hall last week, the motion—that this House has considered the state pension age for women—was, most unusually, negatived. This might reflect the strength of feeling on the matter, but it does not have any procedural effect. The fact is that the question was put to the Members present in Westminster Hall and they came to a decision, which was to negative the motion. That has no procedural effect, but I am sure that if the hon. Gentleman and any of his colleagues wish to have the matter further considered, they will use their ingenious knowledge of parliamentary procedure to ensure that that happens.
Bill Presented
European Union (Withdrawal)
Presentation and First Reading (Standing Order No. 57)
Secretary David Davis, supported by the Prime Minister, Mr Chancellor of the Exchequer, Secretary Damian Green, Mr Secretary Johnson and Mr Secretary Lidington, presented a Bill to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 5) with explanatory notes (Bill 5-EN).
European Union (Withdrawal) Bill
Monday 11th September 2017
(8 years, 1 month ago)
Commons ChamberEuropean Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts
23:59 - The House divided: - Ayes: 296 / Noes: 318 - Question accordingly negatived.
12:14 - The House divided: - Ayes: 326 / Noes: 290 - Question accordingly agreed to.
12:30 - The House divided: - Ayes: 318 / Noes: 301 - Question accordingly agreed to.
Mr Speaker
Before I call the right hon. Member for Basingstoke (Mrs Miller), who will open the debate and be subject to a six-minute limit, may I please make a plea? I ask colleagues not to come to the Chair, or cause someone to come to the Chair on their behalf, with any of the following inquiries. “Am I on your list?”—if you applied, you are. “Am I going to be called?”—you might be, or you might not. “If so, when will it be?”, “May I repair to the Tea Room for a cup of tea and a biscuit?”, or “Is it in order for me to go to the loo?”—for which I read, “Am I about to be called?”. Please, colleagues, I will do my best, but there are approximately 90 people wanting to speak. Some might be disappointed; I am afraid that is parliamentary life. I will make my best endeavours. Please exercise the patience, stoicism and fortitude for which you all are, or hope to become, universally renowned throughout your constituencies.
Mrs Maria Miller (Basingstoke) (Con)
This is a necessary Bill; 52% of the population voted to leave the EU, and each of us who have been voted here by our communities to represent them in this debate need to respect democracy, which is why we need to get on with the job of ensuring a smooth exit from the EU. This Bill is a necessary part of that overall process. For the Labour party to vote against the Bill at this early stage—[Interruption.]
Mr Speaker
Order. This is very unfair on the right hon. Member for Basingstoke (Mrs Miller). This is an extremely important debate, and she has been called to speak, but there is a considerable hubbub of private conversations, which is unfair and, dare I say it, a tad discourteous. Let us give her a fair hearing, which should then be extended to every other contributor to the debate.
Mrs Miller
The Labour party voting against this Bill at such an early stage could easily be seen as a blatant attempt to frustrate the Brexit process. I urge its right hon. and hon. Members to consider their position on that. I listened carefully to the hours of debate on Thursday, and I have yet to hear a single Opposition Member say that this measure is unnecessary; if it is not unnecessary, they should vote for it. There are strong arguments to say that this Bill needs amending, but none that says that it is unnecessary. I shall vote for the Bill on Second Reading, but it is clear that a number of issues need to be addressed during Committee.
The Secretary of State made very compelling arguments in his opening address on Thursday, and from what he said, his intention is crystal clear: he wants this Bill to deliver maximum certainty. He was also clear about his openness to hearing of improvements and making changes to achieve them. I can understand his clear frustration that the Opposition’s concerns have not been coupled with specific solutions. I hope that he and the Minister on the Front Bench today can, in their summing up, respond to the specific recommendations that the Women and Equalities Committee made seven months ago to the Government on how to handle the charter of fundamental rights. My Committee is still awaiting a response from Ministers to that report.
The Select Committee did a detailed analysis of how to make sure that, when it comes to equality laws, the same rules apply after exit as do today; that is exactly what the Secretary of State has said that he wants to do. When it comes to equality laws, we need certainty. We need not only to transpose the laws, but to acknowledge the effect and the impact of EU institutions and the framework currently provided by the charter of fundamental rights. People voted last June to take back control of our laws and how they are interpreted, and for the UK Parliament and the UK courts to be the final arbiter, but they did not vote for a diminution of their rights.
It may not be possible or even desirable to preserve the charter of fundamental rights, and that we should retain the charter is certainly not the case that I am making, as it is so clearly dependent on EU law and institutions. I am saying that we need to ensure that its effect is captured; otherwise the backstop on equality rights would be removed, and that would not be the status quo that the Secretary of State is demanding.
There are many examples that I could use to demonstrate the importance of protecting this absolute right, and if I had more time, I would talk about its importance to pregnant workers. If we do not have a clear statement in the Bill on what basis exactly the courts and the law will be on, we need to ensure that we know on what basis the Supreme Court will be able to stop future Acts of Parliament from reducing individuals’ equality rights that are protected under the Equality Act 2010.
In effect, the current structures act as a free-standing right that cannot be overridden by domestic legislation. I am arguing not for the retention of the EU Court of Justice’s role, but for an acknowledgement that the removal of its jurisdiction needs to be addressed. The Women and Equalities Committee has put forward three recommendations, which could be easily accommodated in the Bill: first, that a clause be added to the Bill that explicitly commits us to maintaining current levels of equality protection when EU law is transposed into UK law; secondly, that the Government commit to an amendment to the Equality Act, mirroring provisions in the Human Rights Act, to make it clear that public authorities must act in a way that does not contravene the Equality Act; and last but by no means least, that when presenting a new Bill to Parliament, Ministers must make a declaration of compatibility with the Equality Act in exactly the way that they do for the Human Rights Act; that would give the courts a clear direction about the importance of safeguarding equality rights.
In summary, it is imperative that the Bill be given a Second Reading tonight to allow those important changes to progress. It is regrettable that some of the matters being debated, particularly those raised in Select Committee reports, have not been addressed before now. I am simply holding the Government to their own intent of ensuring that
“the same rules…apply after exit”
as do today. I am absolutely sure that this Government, under the leadership of my right hon. Friend the Prime Minister, have only the intention of safeguarding and strengthening equality rights, and particularly workers’ rights. As a nation, we have a proud track record on equality—it is part of our DNA—but to keep the status quo, as the Secretary of State says he wishes to, we need to indelibly embed equality in our approach to law, and in the interpretation of that law by the courts.
Angela Smith (Penistone and Stocksbridge) (Lab)
The Bill represents not just a step along the way towards departure from the European Union, but an unacceptable attempt by the Government to strengthen their hand when it comes to exercising legislative power—and this at a time when the general belief is that we should be going in the opposite direction, in effect giving a bigger role to Parliament.
Only three years ago, the Hansard Society published its robust critique of the system in its report, “The Devil is in the Detail”, yet this Bill confers a breathtaking range of delegated powers on Ministers. For example, the Bill, if given Royal Assent unamended, will give Ministers the power to start implementing the withdrawal agreement before this House has even had a chance to debate and vote on it. The Bill will also allow for its own amendment under delegated powers. There are instances, of course, of that happening in the past, but this is different, because the power is drawn so broadly that it could be used to amend all parts of the Act. The Bill also allows for the amendment, under delegated powers, of primary legislation already on the statute book.
Surely, if the Government were genuinely committed to a smooth Brexit that restored total sovereignty to Westminster, they would not have taken such a cavalier approach to this critically important piece of legislation. One can only conclude that the incorporation of significant delegated powers in the Bill, combined with the scope for extensive use of statutory instruments under the negative procedure, demonstrates that the Government are running scared of parliamentary democracy; or rather, that they are so arrogant that they believe that they can impose their will regardless of the opinion of the House.
I would go further and argue that the Government’s approach to the Bill threatens a chaotic Brexit, because they refuse to recognise that their use of delegated powers in the Bill pushes our democracy beyond breaking point. That attitude threatens nothing but discord if the Bill goes on the statute book unamended, and in that context, it will do little to deliver a smooth Brexit. Let me be clear: I accept that an efficient and businesslike approach is needed if we are to prepare ourselves successfully for exit from the European Union, but the Government seem incapable of accepting that this approach can be secured while according Parliament its proper and democratic role in scrutinising the powers in the Bill, and the statutory instruments that will emerge over time if it gains Royal Assent.
The Hansard Society has shown us the way, providing us with a framework for scrutiny that removes unnecessary and time-consuming procedures for uncontested SIs, while giving the Commons a more meaningful voice in the process leading to the enactment of the more complex and challenging instruments. I hope that the Government will change their mind; there is a way forward on the table. I hope that those on the Government Front Bench will indicate today that they are prepared to amend the Bill in Committee to allow for meaningful reform of the way in which Parliament scrutinises delegated powers and their use by Ministers, but so far we have had only a weak indication from the Government that they will bend on this all-important principle, and that is just not good enough. That is why I will vote against Second Reading tonight unless things change during the debate.
If I do vote against Second Reading tonight, it is not because I am voting against Brexit. That would be a huge misrepresentation of the nature of this debate and the nature of the decisions involved if we agree to Second Reading. Rather, I will be voting against a Brexit badly handled, which threatens to weaken further our long-established and hard-won democratic traditions.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill—it is an administrative measure. I spent many years on the Opposition Benches—on the Front Bench and on the Back Benches—practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made—on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition.
Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.
Mr Kenneth Clarke (Rushcliffe) (Con)
My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.
Mr Jenkin
My right hon. and learned Friend sets out the common ground we should all be on. However, the debate was not assisted by Tony Blair, who was on the television yesterday speaking about how to deal with this issue. He said:
“Paradoxically, we have to respect the referendum vote to change it.”
There is an understandable suspicion among Conservative Members that some people have not really accepted that we are leaving the European Union. The fact that the official Opposition have chosen to vote against the whole Bill underlines that they are rather reluctant to accept the decision the British people have made.
Before I move on, I should re-emphasise that the Hansard Society proposals have a lot to them, and we should be able to discuss them. I hope that, behind the scenes, colleagues will talk across parties on these matters, as one or two of us have already suggested we should.
However, let me put this in the much wider context, because we are getting rather lost in the detail of the Bill. We are forgetting what the Bill is for and the context it is being discussed in: we are leaving on 28 March—or whichever date it actually is—next year. It might be helpful to have the exit date on the face of the Bill at the outset, to provide additional clarity that negotiations are in progress, or should be.
I think everyone is getting a bit disappointed that there has not been more substantive discussion about the issues that really matter. The European Union’s position is beginning to look more and more unreasonable as it refuses to discuss the end state of the relationship that we all want to see, insisting on an up-front payment, or promise of payment, before it will discuss those matters. I have absolutely no doubt that the EU is playing for time for some reason, possibly because of the German elections, and is likely to crumble on that, and to start to talk seriously about the issues that we need to discuss.
We can talk too much and too glibly about cliff edges; I notice that even the Government have put the term “cliff edge” into their documents. Let us face it—the United Kingdom does not want a cliff edge. We are offering the rest of the European Union seamless trade, as far as possible, no tariff barriers and mutual recognition for products and services.
Henry Smith (Crawley) (Con)
My hon. Friend sets out the very essence of the Bill. This is not about a sudden change, but about transposing EU law into British law and evolving as we move forward as a sovereign nation.
Mr Jenkin
Absolutely right. The point is that we want that smooth transition; the only reason there is a possibility that there will not be one is the intransigence so far of the European Union. The paradox is that there are people who were very much in favour of Britain’s membership of the European Union who clearly think that the European Union will inflict the most ghastly cliff edge on our country. I think better of the EU. There are sensible people in the European Union who will not want tariffs, or tariff barriers, or new and unnecessary restrictions on trade between our two countries. They will not want to de-recognise so many of the mutual recognitions we already have. They will want to secure the jobs of their people and their countries just as much as we want to secure ours.
Even if we leave without an agreement, I think the biggest challenge is being ready in time. My biggest concern is that there are still parts of Government that do not seem to be preparing quickly enough. On the question of Her Majesty’s Revenue and Customs and the customs arrangements, are those at HMRC spending money on what we need in place in case there is no deal? I keep hearing that they are waiting for instructions, as though there will be something much clearer for them to work against, but we have to face the fact that we might well leave without a comprehensive settlement of some kind, and that our customs arrangements and all the other arrangements will have to be ready in time. This Bill enables us to do that.
I will end my speech a little early by emphasising that a vote against this Bill would be a terrible disappointment, and I would not take such a vote at face value, as I do not think that the vast majority of hon. Members in this House want to create a chaotic Brexit. They will be voting for a tactical defeat, because they know that they cannot succeed in this debate.
We should concentrate on the fact that we have far more in common with our European partners than divides us. That will be the same after we have left the European Union as it is now. I look across the Chamber at the hon. Member for Ipswich (Sandy Martin); we stood together in one of the glorious Suffolk churches of East Anglia last night and sang Beethoven’s ninth symphony and the words of Schiller’s great poem, the “Ode to Joy”. Incidentally, it was composed more than 100 years before the European Union was invented and has absolutely nothing to do with political and monetary union under the European Union. We are leaving the European Union; we are not leaving Europe.
Frank Field (Birkenhead) (Lab)
I can be mercifully brief. I wish to make two points. First, I will vote tonight for the only option that implements the referendum result. That was the wish of my constituents and that was the wish of the country. I do not wish any different view to be put forward about whose side I am on—I am on the side of the majority of people who voted to come out.
Secondly, I want to address those on the Government Benches. When we started this process, many people bravely went against their lifetime views to implement the views of their constituents, but given the frailty of human nature we have had one or two recidivists who are now thinking, having read Thursday’s debate, that there may be reasons for not doing this or not doing the other. When we come back in Committee, I will table a four-clause Bill, because the Government, by having this mega-Bill, are storing up no end of trouble from Members who are wolves in sheep’s clothing and who will try to undo the measure.
We need four crucial things from that Bill. First, we need a leave date. Secondly, we need to incorporate all European Union law and regulations. The third clause will give us the means by which the House of Commons and then their lordships review which laws we want to keep, which we want to improve, and which we want to do away with. We are voting from midnight tonight, and there is talk that it will be 3 o’clock on Wednesday morning before we vote on tomorrow’s business. With regard to the idea that this place is equipped to review all that legislation, there is shedloads upon shedloads upon shedloads, and it would fill up the House of Commons on several occasions. We therefore need a means whereby we review which legislation we will keep and which we will not. Fourthly, in case there are problems with people with their little hands on our windpipes who think, “If we can hold them to the two years, we will get what we want”, we need a safe haven.
That is what we need from this exit Bill: first, the date; secondly, the incorporation of everything; thirdly, a method of review; and fourthly, for a limited period, a safe haven. I hope that when we go into Committee, the Government will adopt those four proposals as clause 1 so that we can very quickly implement this Bill. We can then bring forward small Bills to implement other parts of the mega-Bill they are putting before us, should we need them. I hope that when the whole House of Commons is in Committee, we will carry that amendment.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
I agree with the right hon. Member for Birkenhead (Frank Field) that this Bill is merely an enabling piece of legislation—a process whereby we can achieve what the country asked us to do. As I understand it, the Government are willing to consider changes in Committee. I hope that they will look at his amendments, and also perhaps mine.
I am sure that all my colleagues here, like me, have been on the receiving end of various emails about this Bill urging us to vote for it, against it or against the programme motion, or complaining about the arrangements for devolution. Voting against it certainly does not make any sense, particularly after the House passed the article 50 legislation. The Bill is the vehicle for the Government and this House to deal with a unique and extraordinary situation and ensure a functioning statute book as we leave the EU. Unless they are trying to rerun the referendum or create chaos in the process, voting against it should not be an option for any Member tonight.
Ministers have indicated that they will be flexible wherever possible. On the programme motion, however, I think, having lived through the Maastricht debates, that there is little to be gained and much to be lost by prolonging any debate unnecessarily, and eight days seems a reasonable length of time. Our businesses and organisations will not thrive with ongoing uncertainty, and this Bill increases the progress being made to provide the stability and certainty they require for a smooth transition and continuity of business post Brexit.
On devolved matters, our membership of the EU predates devolution to Wales, Scotland or Northern Ireland. It was the UK Government who gave away these powers to the EU, and it is UK Government who will reclaim them. As far as I am aware, the Government have not resiled in any way from devolution; instead, they have recently increased the powers transferred to Wales and Scotland. The Secretary of State has reconfirmed that the current powers will remain exactly the same throughout the process, and the devolved Administrations will, in fact, prepare the devolved statute books for a smooth exit in Cardiff and Edinburgh, with appropriate arrangements for Northern Ireland. Further, he has indicated that in the interim period, if any adjustments need to be made in the areas that are being repatriated, the relevant Administrations will be consulted.
On delegated powers, I see the Bill not as a power grab, which is how it has been painted, but as a pragmatic approach to ensuring that no unnecessary complex disadvantages further burden business in the devolved countries. I hope that an accommodation will be reached on other differences in that area, and I know that the Front-Bench team is listening carefully.
I want to raise one subject on which I would like clarification. The repeal Bill, as it stands, does not prevent the continued application by UK courts after Brexit of EU law to cases in which the facts occurred at a time when EU law, including the law relating to remedies, was in force. So although, if I understand it correctly, there is provision for a Francovich case to be heard if it is lodged before exit day, and there is provision for the consideration of EU legal principles, the repeal Bill does not provide for a transitional reference—one that is made before the exit date but does not come back until after the exit date, or one that is made after the exit date. I hope that Ministers will consider a new clause that allows references on cases that are under way, and that they will look into the matter to ensure that the Government do not abuse their position or evade their responsibilities as a by-product of Brexit.
The Ministers on the Front Bench will be particularly aware of my battles against HS2, which are well documented, and it is worth noting that even former very senior civil servants now virtually acknowledge that the Government went ahead with that monstrous project against advice. What the project has done is throw into sharp relief the need for environmental protections to be effective and maintained, so that we do not take any backward steps. Where the EU has done some good work, it has been on environmental safeguards. I think it is right to remind Ministers on Second Reading that any changes to these areas must be thought through so as not to dilute the protections and the promotion of environmental law, and I seek assurances on those matters.
In conclusion, we have all heard the rather simplistic attempts to give this process a prejudicial descriptor—hard or soft Brexit—which are a product of polarised viewpoints. I prefer a practical approach and, with perhaps a few modifications, the Bill will do what it says on the tin. It provides a method of facilitating a very complex legal and constitutional extrication, the need for which has resulted from a democratic vote to leave the European Union. I will therefore support the Government in the Lobby tonight, and I hope that many of my Opposition colleagues, as well as my friends on the Government Benches, will do the same.
Wayne David (Caerphilly) (Lab)
Although I campaigned and argued for this country to remain a part of the European Union, I fully accept that that is not the majority view of the country. But I would argue that this is the wrong way to leave the European Union. This is not a general enabling Bill; it is a poorly thought-out, complex and undemocratic piece of legislation. One of the most fundamental problems with the Bill is that it amounts to—yes—a power grab by this Government. That power grab takes several forms, but I want to focus on just two aspects.
First, there is the widespread use of Henry VIII powers, allowing the Government effectively to bypass Parliament and change primary legislation through secondary legislation. That has, of course, happened in the past, but not on such a huge scale as is planned now. As a result of this Bill, we will see extensive use of those undemocratic powers, because some 12,000 EU regulations will be brought into UK law. Some of them will make changes for technical reasons, but, as the most recent paper from the House of Commons Library states, it is anticipated that others will enable “substantive policy changes” to be made by the Government. So changes are likely to be introduced through Committees, which is why the Government are doing their best to pack those Committees with their own MPs, against the established procedure of the House.
We are also seeing an unprecedented power grab with regard to devolution. As a Welsh Member of Parliament and a former Wales Office Minister, I have followed devolution very closely. Many of us expected, as did the devolved institutions themselves, that this Bill would make real the promises the Government set out in their White Paper.
Wayne David
There are many speakers, as we have heard, and I am sorry, but I would rather press on.
In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.
Mr Jenkin
In the last Parliament, the Public Administration and Constitutional Affairs Committee took evidence on this matter from the same academic who advised the Scottish Parliament, and he was very clear that the powers being reserved under these proposals were only ever notionally devolved, because they were of course reserved by virtue of our membership of the European Union. This is not a power grab; the Government’s objective is to make sure that the devolved Administrations finish up with more powers than they had before.
Wayne David
We are not talking about notional, theoretical powers; we are talking about actual powers on the statute book, and about whether one institution or another is able to enact laws according to that legislation.
There is a big difference between what was in the White Paper and what is in the legislation before us. What is more, undemocratic changes have been introduced without even a modicum of prior discussion, let alone negotiation, with the devolved institutions. This power grab by the Conservative Government is an affront to the devolved institutions, but it is also a slap in the face of the people of Scotland and of Wales. As Carwyn Jones, the First Minister, said in the Welsh Assembly in July, there is a popular mandate for what the Welsh Government are arguing. To quote him exactly:
“The 2011 referendum…saw a large majority vote in favour of giving this National Assembly primary legislative powers”,
but the European Union (Withdrawal) Bill is
“an attempt to take back control over devolved policies…not just from Brussels, but from Cardiff, Edinburgh and Belfast.”
In his letter to Members of Parliament, dated 7 September, the First Secretary of State said that the arrangement I have described was a “transitional arrangement”. My question is: how long is this transitional arrangement for? How long is the period to which we are referring? How long is the rapid period mentioned in the explanatory memorandum? Is it one month, one year, 10 years, 20 years—how long? This Bill is an undemocratic blank cheque that, if passed, will give unprecedented powers to this Government.
Unfortunately, it is difficult to avoid the conclusion that the Bill has as its prime objective not so much withdrawing Britain from the European Union as concentrating as much power as possible in the hands of a feeble minority Government, headed by a caretaker Prime Minister. Under the cloak of leaving the European Union, the Government seek to emasculate this House and centralise power in their own hands. If the Government were solely concerned about leaving the European Union, there are other ways that it could have been done—other measures could have been put forward—but, no, they chose this particular route. Rather than looking forward to a new and positive relationship with the European Union, this Bill takes us back to the days when the UK was totally London-orientated and inward-looking. That is why I will vote against it, and why I believe that is the right thing to do.
Sir Edward Leigh (Gainsborough) (Con)
Our greatest parliamentary exponent of parliamentary democracy coined the phrase, “In Victory: Magnanimity.” Although, as one or two of my friends know, I am a leaver and my constituency voted 60% to leave, I think that that should be the Government’s approach, both to Parliament in the Chamber and to our European partners and allies. I do not think that it is enough just to allow time on a rainy Thursday on a one-line Whip. The Government should be as generous as possible with time, to allow the House to consider these matters. Personally, I do not see why we could not have three or four days on the Bill, as many people have put in a request to speak. After all, we spend a lot of our time discussing not very much. I would be open-hearted and generous with Parliament.
Before I refer specifically to the Bill, may I say by way of introduction that it would be useful to improve the atmosphere around the process? The truth is that this is a democratic process. Those of us who asked to leave the European Union made our arguments on the basis that we wanted to improve parliamentary democracy and put our people back in charge. That should be our whole approach, and it should be the Government’s approach.
To put that in context, I would be open-hearted and generous in the negotiations between Monsieur Barnier and the Secretary of State for Exiting the European Union. The important thing is that we are leaving, but I do not see why we should not be generous with the financial settlement. We should be as generous as the law dictates, but there is also the spirit of the law. As we have been in an organisation for 42 years, and as we have decided to leave—it has its own spending plans—I do not see why we should not assist it with some of its spending plans until 2021. After all, if we pay less, others will have to pay more. Some of my closest friends do not agree with that. We have the law on our side, but precisely because of that we can be generous.
On the rights of citizens, I have just spent time with Italian Senators who are visiting the building, and with the Italian ambassador. We need to be open-hearted and generous towards European citizens who live here, and proclaim now that we are absolutely committed to preserving their rights and those of every EU citizen, on benefits—[Interruption.] I know that we have done it, but we should keep repeating that we are determined to protect those rights. We should be open-hearted and generous in dealing with the House of Commons, in dealing with money, and in dealing with the rights of EU citizens. If we approach life and these negotiations in that spirit, doors might begin to open.
I listened to the shadow Secretary of State for Exiting the European Union—a brilliant lawyer. We are both lawyers. I am just a jobbing barrister doing criminal law in London. That is what I did when I was a young man. I cannot possibly match his debating skills. He does have a point, and we Conservatives should recognise that. My right hon. Friend the Member for Broxtowe (Anna Soubry) has a point; the right hon. Member for Birkenhead (Frank Field) has a point; my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) has a point. I will, of course, vote for the Bill, because that is what the people want me to do, and it is what my constituents want me to do. There is no alternative, but amendments will be tabled when we are sitting in a Committee of the whole House. I serve on the Panel of Chairs, and I know the Government’s position is always to reject all amendments. This time, they should be positive if something improves parliamentary scrutiny. We are going to get our way; the Government have a majority, supported by the Democratic Unionist party. We should be generous with our Scottish friends. If they have a genuine desire to ensure that powers from the EU do not come to the Westminster Parliament but go to the Scottish Parliament, we should be generous towards them.
There is a lot of false anger. I have sat through many debates in which shadow Secretaries of State puffed themselves up. We have heard a lot about Henry VIII. When I was a rebel I used to care about these things. Now I am a loyalist I let the Government get away with it in many ways. Henry VIII is a bastard, but he is my kind of bastard.
I have made my point. Listen to the House, accept some amendments and ensure that this process is time limited. The key thing for our constituents is this: that we leave the EU at the end of March 2019; that any implementation period lasts only two years; and that we then become an open, free-trading nation with the whole world, with a free trade agreement with the EU. Stick to the essentials, be confident, be generous with the House and we will win this battle.
Caroline Flint (Don Valley) (Lab)
It is a pleasure to follow the hon. Member for Gainsborough (Sir Edward Leigh) and his constructive and positive contribution.
There is no doubt that Brexit poses a great number of challenges to the Government and to MPs of all parties, not least the challenge of replacing European Union laws and jurisdiction with equivalent UK laws and regulations under UK jurisdiction. That is the purpose of the Bill. It is not really a repeal Bill; rather it is the “great adoption” Bill, as it incorporates a huge swathe of EU laws that the UK signed up to into UK law. That is needed so that there will be a legal basis for a whole range of economic, environmental and social activity on the day after we leave the EU in March 2019. For that reason, I do not regard the Bill as hugely controversial—it would be different if it were to abolish workers’ rights, abandon paid holidays and end pollution controls, but it does not. However, it is undoubtedly the case that the Bill needs amending for many of the reasons outlined by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer).
First, on the Henry VIII clauses, transferring all EU laws and regulations into UK law is an unenviable task. It would also be impossible to put every change or updated regulation before Parliament as primary legislation. This House, as we know, passes many statutory instruments, but in this case the Government need to back a mechanism for providing a filter to separate the routine, or the modest, from the more important changes that Governments may wish to make in the coming years. If a mechanism—a scrutiny Committee, for example—could provide a path for Members by ensuring that important measures would be brought before the House for debate and a vote, the Government could remove any suspicion that they seek a ministerial power grab.
Secondly, the Government should be open to suggestions about how they can guarantee redress for individuals who feel that their transferred rights are not met by companies or government. Clarification about the provision of redress would, again, remove suspicion during the process.
The truth is that whomever was in government would have to pass a Bill of this kind to prepare for leaving the EU in March 2019. There can be little disagreement about that, unless the ambition is to thwart the result of the EU referendum and to prevent or delay the UK leaving the EU. I believe that Labour’s job is to improve the Bill by amending it, not to kill the Bill at the beginning of its passage through Parliament. Labour’s reasoned amendment
“declines to give a Second Reading to the European Union (Withdrawal) Bill”.
If that amendment is successful, it will kill the Bill. According to the Public Bill Office, if this Bill is defeated today, a new Bill would have to be introduced in a new Session, or the measure would need to reintroduced in a sufficiently different form as to not fall foul of the same-question rule. Either way we look at it, defeat for the Bill implies a substantial delay in transferring EU law into UK law, thereby increasing the uncertainties while the Brexit clock ticks towards midnight.
I voted and campaigned for the UK to remain—not in a metropolitan city or university town, but in a seat where I knew a leave vote was the likely outcome. I invite colleagues who were not campaigning in such seats to visit mine. Since the result, I have argued that leave and remain supporters should bury our differences and get on with it. Complex issues such as trade will require more time, hence the need for a transitional period of minimum change while future arrangements are put in place. Some leavers say, “We don’t need any transitional plans,” while some remainers say, “Any deal must be worse than staying in.” To them I say this: life post-Brexit is not a choice between nirvana and a living hell. Some changes will be better and some will be worse, and much will pass unnoticed. We either work to make the best of it, or simply damn it for not being perfect. This calls for honest endeavour and compromise on all sides.
Whatever side of the debate Members fall on, if they honestly accept the will of the British people, they are honour bound to see this through and make the best of it. Some suggest that the general election on 8 June changed everything. Like it or not, it led to the second coalition of sorts in seven years—a confidence and supply agreement between two parties that both promised to deliver Brexit. In that general election, I told Don Valley voters:
“When Britain leaves the European Union—I will work for a deal that works for Doncaster. That means easy trade, protecting workers’ rights and tough immigration controls with strong borders”.
I said:
“I don’t support a second referendum. We need to bring people together, whether they voted Leave or Remain and make a success of Brexit.”
I repeat those words today because I have no intention of breaking my word to the voters who have returned me to this House on six occasions.
I hope that Ministers will listen to concerns about the Bill. Their lack of openness, collaboration and foresight to produce a better Bill has not helped. To the Government I say: treat Parliament with respect and be open to constructive suggestions to improve the Bill. I will work with others to improve the Bill, but tonight I cannot vote to block it; I shall be abstaining to allow it to be further discussed and amended. We have a job to do to ensure a smooth, orderly Brexit—for the British people, for British businesses, and for our continuing friendship and partnership with the EU.
Zac Goldsmith (Richmond Park) (Con)
It is an honour and a pleasure to follow the right hon. Member for Don Valley (Caroline Flint), who gave an extraordinarily compelling and principled speech.
This is a critical Bill. We cannot logically leave the EU if we continue to subject ourselves to EU law, courts and regulators. It is for exactly that reason, however, that some Members will use the Bill as an opportunity to scupper the process and prevent us from leaving the EU. And that worries me. In perhaps the most important—certainly the biggest—democratic exercise the country has ever seen, people voted to leave. I believe that 80% of electors in the general election voted for parties that pledged to honour the result of the referendum. If that promise was broken, the resulting anger would give rise to extreme political movements right across the UK that would change our politics forever. We can improve the Bill in Committee and on Report, but to stop it on principle is to play with fire.
I want to comment briefly on one area impacted by our leaving the EU: the natural environment. The opportunity to do great things here is almost incalculable. We have a chance not only to right some wrongs, but to make historic progress. Under the common agricultural policy, for example, vast amounts of public money are handed to wealthy landowners simply because they own land. The policy supports perverse incentives to harm the environment and shuts off the UK market to developing countries through higher tariffs. For years, environmentalists, farmers’ organisations and a whole succession of farming Ministers have dreamt of changing and profoundly reforming the CAP. Well, we now can—and we must. We will be able to ensure that the subsidies regime that replaces the CAP supports food production and improves and protects the natural environment, with a system whereby public money is genuinely a return for public good. We have an opportunity to raise standards and boost our rural economy at the same time, and that opportunity extends beyond the CAP. As a country, we have led the way on animal welfare, but we have been limited in what we can do due to our membership of the EU.
Henry Smith
One animal welfare benefit is that on leaving the EU, we could ban the live export of animals from our ports, which causes such great suffering.
Zac Goldsmith
I thank my hon. Friend for making that point, which is one that I was just about to make. CAP funds have even been used to subsidise bullfighting in Spain.
Sir Edward Davey (Kingston and Surbiton) (LD)
Will the hon. Gentleman give way?
Zac Goldsmith
No, I will not take any more interventions.
Most critically, even though we apply high animal welfare standards to production in this country, we cannot apply those standards to the food we import, which means that instead of preventing cruelty, which is what we are trying to do, we are simply exporting that cruelty to other countries while disadvantaging our own farmers. We could address that as well.
Clearly, in other areas, the EU has been a good thing for the environment—I would not pretend otherwise. The EU has undoubtedly been instrumental in forcing us to clean up our act. For instance, our rivers and beaches are cleaner today because of the EU than they would have been.
Zac Goldsmith
I will not.
That is why a core responsibility of this Parliament and this Government is to ensure that those key EU regulations—the habitats directive, the birds directive and the sewage sludge directive—have absolute, meaningful, proper, full protection in British law. We have had that commitment, but I should like to hear it a few more times from Ministers during this debate.
There are legitimate concerns about this process that need to be addressed in the Minister’s wind-up.
Geraint Davies (Swansea West) (Lab/Co-op)
Will the hon. Gentleman give way?
Zac Goldsmith
I will not, because I am running out of time.
First, when a state fails to implement EU law today, there are penalties, but that will no longer be the case—for obvious and appropriate reasons. However, an alternative system does need to be introduced. If the present or a future Government fail, for example, to stay within air pollution limits, it must be possible for sanctions to be applied and for that Government to be held to account—that is a core ingredient in any healthy democracy.
Secondly, it is not clear that important principles, such as the “polluter pays” principle or the precautionary principle, will be fully and meaningfully absorbed into UK law. If the individual regulations are to have meaning, those principles must be embedded in UK law. Finally, the Bill enables the Government to transfer regulatory functions from the EU to domestic bodies, but it does not make that obligatory, which seems to me to be an obvious weakness. I hope that the Minister will respond to my concerns, as well as the other issues that are raised today, and provide reassurances that they will be addressed either during the Bill’s later stages, or in subsequent environmental legislation.
Stephen Gethins (North East Fife) (SNP)
Today marks the 20th anniversary of the referendum on re-establishing the Scottish Parliament—not just “notionally” re-establishing it, I should point out to the hon. Member for Harwich and North Essex (Mr Jenkin). I voted in that referendum having just returned from the Erasmus programme. The re-establishment of the Scottish Parliament was backed by most of Scotland’s parties—certainly by its progressive parties. Today we are about to see the biggest devolution power grab since that re-establishment, and it that will have an impact on the devolution process the likes of which we have never seen before. As someone who returned from Erasmus to vote in the referendum 20 years ago, I have been reflecting on the impact that this process will have on opportunities for young people, among others.
The hon. Member for Richmond Park (Zac Goldsmith) rightly highlighted the benefits of European Union membership. It has benefited our rights; it has enabled us to build a broad consensus on the need to tackle environmental problems such as climate change; it has benefited universities; and it has torn down trade barriers. Tonight we will vote on a Bill that will take powers away from Holyrood and undermine the devolution process, and that is something that we cannot thole.
Stephen Gethins
I shall come to both hon. Members shortly—they will have ample opportunity.
The Government’s approach was rejected in June, and we should all be mindful of the fact that what has been delivered in its place is a Parliament of minorities. That is commonplace at Holyrood. It is something that we had to get used to, and it is something that we shall all have to get used to. A Parliament of minorities is clearly a challenge for the Government, but it is a challenge for the Opposition as well, because we must all show that we are willing to work in a constructive way if the Government are willing to listen. That is not easy for us. The SNP remains committed to Scotland’s membership of the European Union. I want to see Scotland as an EU member state, and I am proud that Scotland voted overwhelmingly to support that. However, given the devastating impact of the Government's lack of strategy, it is up to this Parliament, and all parliamentarians, to step up to the mark.
The mess that we are in is not entirely the Government’s fault. I think that Vote Leave bequeathed that mess by presenting a blank piece of paper, which means that it is up to us to try to fill in those many, many blanks. Having said that, the Government have had five months since they triggered article 50 and 15 months since the EU referendum. Ministers bear culpability for the present situation, but Ministers who were part of Vote Leave bear particular culpability. For instance, there is the Secretary of State’s own yardstick:
“I would expect the new Prime Minister on September 9th to immediately trigger a…round of trade deals”.
Where are they? In the face of such chaos, all Members have a responsibility—each and every one of us. We need to put our differences to one side.
There is scope to do that, as we have put together a compromise. On this anniversary of devolution, I want to pay tribute to the Labour party and Plaid Cymru, which were able to put aside their differences and to try to come up with a common position. I know it was not easy for Members of both parties to do it, but they did, and full credit to them both for doing so. The Scottish Government put together a committee of experts to come up with a compromise, and I note that in the aftermath of the referendum—here is the cue for Conservative Members—Scottish Labour and the Scottish Conservatives called for retaining membership of the single market. In fact, the Scottish Conservative leader—who knows, maybe the future Westminster Conservative leader—said:
“Retaining our place in the single market should be the overriding priority.”
I would certainly hope that Ruth Davidson’s Conservatives will do the right thing and stand by their leader. I wonder if they are Ruth Davidson’s Conservatives or Theresa May’s Conservatives when it comes to this—they are staying seated, saying nothing whatsoever.
The Bill also represents one of the biggest power grabs that we have seen. I note that one MP said—
Mr Speaker
Order. The hon. Gentleman is in a state of uncontrolled excitement, but he is auditioning to be a statesman; he must calm himself.
Stephen Kerr
The hon. Gentleman has mentioned several times now that this Bill represents a power grab; that is the new in-fashion statement from the Scottish National party. Can the hon. Gentleman name one power that the UK Government will grab back from Holyrood?
Stephen Gethins
I will give the hon. Gentleman his due: at least he had the courage of his convictions and stood up; the rest of them took their time over that. On fishing, on agriculture and on energy, we were told that these powers would come back to the Scottish Parliament without touching the sides, so where are the full powers over fishing, agriculture, energy and education? They are being retained by this Parliament on the 20th anniversary of the devolution process.
To return to my point, the MP I mentioned earlier said this:
“The balance of advantage between Parliament and Government is so weighted in favour of the Government that it is inimical to the proper working of our parliamentary democracy.”—[Official Report, 22 June 1999; Vol. 333, c. 930.]
That warning about powers such as Henry VIII powers was made in 1999 by the Secretary of State himself when he tried to introduce a Bill to deal with them.
This is a hung Parliament. The Scottish Parliament was designed for a new kind of politics, and one thing I will say to Conservative Members—I hope they are listening—is that even when the SNP was elected with 47 seats out of 129, we had ground-breaking, world-leading action on climate change, free education was reintroduced, and the number of police officers was increased. Action can be taken in a Parliament of minorities, but for that to happen, Members must be willing to listen to those on the other side of the House.
Excellent points have been made from the Conservative and Labour Benches, as well as by other colleagues. The challenge is whether this Government are prepared to listen. What we have seen so far is a Tory Government who want to turn their back on the EU and happily talk about a no-deal situation that would be devastating for jobs and the economy. This approach of ourselves alone against the world is not one that I can possibly endorse, and nor can my colleagues. We must reject this Bill. A new approach is needed, and that is why we will be voting against the Bill tonight.
Robert Neill (Bromley and Chislehurst) (Con)
I shall support the Bill on its Second Reading for the simple reason that it is necessary. I do not do so with relish, because I would rather that we were not leaving the European Union, but, as a democrat, I accept the outcome of the referendum. And if we are to leave, we must do so in an orderly fashion, and it is therefore particularly important that we have legal certainty and continuity. The objective behind the Bill, of incorporating EU laws under the acquis into our law, is perfectly sensible, and that is why I shall support it, but we must also have a Bill that is fit for purpose and actually achieves that effectively. Although I shall support the Bill on Second Reading, as will become apparent, I do so on the basis that it needs improvement in a number of areas in Committee.
I had the chance to read in detail the impressive speeches of my right hon. and learned Friends the Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve), who I am glad to see are both in the Chamber. I agree with their analysis, and I will not seek to repeat it all. I adopt what they said about the areas where improvement is needed. It has already been pointed out that there are difficulties with the Henry VIII powers. It seems to me that clauses 7 and 9 go beyond what is acceptable or necessary, and I hope that the Government will approach that matter in a sensible and constructive spirit. Equally, delaying the Bill would do no favours to the good governance of the country, to citizens or to businesses and business confidence, so I certainly have no truck with the Opposition’s approach of seeking to undermine the Bill.
We need to make clear the areas of the Bill that need improvement. There is of course a use for so-called Henry VIII powers for making secondary legislation in appropriate cases, but in some areas we are dealing with matters of the most profound significance for individuals and businesses. I hope that the Ministers, who are reasonable people, will listen to constructive amendments that would provide reassurance and safeguards against inappropriate use of those powers and would improve the Bill by bringing greater clarity to the way they can be applied.
I shall touch briefly on a couple of other matters. I hope that we can look at the opportunity to assist the judiciary with how they interpret the EU acquis, which will be incorporated in our domestic law once we have left. The recently retired President of the Supreme Court, Lord Neuberger, made this point powerfully, and he did not do so lightly. It is frankly not fair to leave judges to fish in the dark when they come to interpret some of the legislation.
A particularly important issue in this respect is that once we leave the direct jurisdiction of the European Court of Justice, the opportunity to seek preliminary rulings on issues will no longer exist and we have to find alternative means for dealing with that. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) referred to the Francovich situation. She is right about that issue, which should be addressed. Similarly, we have to bear in mind that we will incorporate EU law, which in some cases is based on the treaties. Will the UK courts be able to take the treaties into account in assessing how incorporated law should be applied post our leaving? Those are important areas where greater clarity is needed. What is to be done about situations where incorporated law grants a right to a UK citizen or business but our leaving will, at the moment, leave a gap as to whether that UK citizen or business has a remedy?
Nick Thomas-Symonds (Torfaen) (Lab)
One of the issues is that with environmental law, for example, there is currently a remedy of going to the European Court of Justice, but there is no replacement in the Bill as it stands.
Robert Neill
That is entirely right, and it cannot be rational or coherent to give UK citizens a right under UK law by incorporating European law but give them no ability to exercise that right. That applies whether a case is against another individual, against a business, or indeed against the Government. My right hon. Friend the Member for Newbury (Richard Benyon) pointed out that that also raises the issue of infraction proceedings: what is the remedy if the Government breach incorporated law?
Those important issues need to be dealt with in Committee, so I turn briefly to the programme motion. We must have time to deal with these matters properly. I want the Bill to be successful. I want it to end up as a good Bill, and that will require changes to the Bill. With good will, that can be achieved—and it can be achieved timeously, to ensure that what we need is in place at the time when we leave the European Union. I have no truck with those who seek to filibuster and needlessly delay the Bill. If I am to be able to support the Government on the programme motion, I hope that they will assure us that we can have some flexibility if more time is required for genuine, serious consideration of important amendments, but I hope that it is not needed—there is a distinction between proper consideration of serious points of amendments and the sort of filibustering that I am sure we will see. On that basis, I am prepared to give the Government a fair wind, but it is important that we get that assurance so that our important scrutiny work can be done properly.
Finally, I have just returned from Gibraltar, where I was with several other colleagues for its national day celebrations. Gibraltar will be affected by our departure from the European Union, but I am glad to say that Her Majesty’s Government of Gibraltar and the business and civil communities there are satisfied with their level of engagement in the negotiations so far. However, can I have an assurance that when we come to deal with secondary legislation that may affect Gibraltar, its Government will be fully involved in the drafting of any secondary legislation that may have an impact on them?
Mr Pat McFadden (Wolverhampton South East) (Lab)
The Bill attempts to incorporate into domestic legislation the body of European Union law that has built up in the 44 years since we joined the EU. The stated purpose is to provide the country with continuity and certainty on what our statute book will contain on the day when we leave. Yet the purpose of leaving the EU is to depart from the laws incorporated by the Bill, otherwise there would be no point. So the legal certainty that the Bill aims for can last no longer than day one itself.
Leading leave campaigners have attempted to assuage such fears by pretending that they want to change nothing—not labour laws, not environmental protections, and not consumer protections. Those who have been the most vociferous opponents of any regulation that has stemmed from the EU, including members of the Cabinet who have attacked its laws and protections, such as those for people at work, now profess to agree to all the regulation that they previously detested. As we have come to expect in the pattern since the referendum, any attempt to ask questions about the Bill has been met with the usual accusations of betraying the public and denying the referendum result. Our democracy deserves better than that. If the proposals cannot stand scrutiny and questioning, the proposals are at fault, not those doing the questioning and trying to apply scrutiny.
Let us look at the content of the Bill. Most attention has been focused on the delegated powers provisions set out in clauses 7, 8, 9 and 17, and on the scrutiny provisions set out in schedule 7. In simple terms, those are the powers to amend the law without the usual legislative process of full debate. For example, clause 7 states that a Minister
“may by regulations make such provision as the Minister considers appropriate”,
and clause 9 states:
“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”
Up until last week, the cornerstone of the Government’s defence of those proposed powers was the claim they were supported by the House of Lords Constitution Committee. Indeed, last Wednesday, the day before this debate began, the Prime Minister told the House that the Government’s approach
“has been endorsed by the House of Lords Constitution Committee.”—[Official Report, 6 September 2017; Vol. 628, c. 148.]
Let us look at what the Committee actually said in last week’s report. It stated:
“The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government.”
It continued by saying that
“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”
and that the
“number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence.”
If that is the Government’s case for the defence, I would not like to see the case for the prosecution.
Mr Kenneth Clarke
Does the right hon. Gentleman agree that there have been a lot of arguments in the past about Henry VIII powers and about the Executive taking power away from Parliament, and that it has all steadily gone in one direction? The danger now is not only the consequences of this Bill and of the details of Brexit, but that if the House does not challenge this Bill and change it, it will be quoted as a precedent for years to come. I have no doubt that if the Labour party ever gets back into power, a future Labour Government will start lecturing a Conservative Opposition that there are clear precedents for taking powers of this kind.
Mr McFadden
The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before.
The criticism does not stop with the House of Lords Committee. The Hansard Society says that
“the Bill will strengthen the…executive, not Parliament”.
Its report on the Bill says:
“the broad scope of its…powers, the inadequate constraints…on them, and shortcomings in the proposed parliamentary control…will be…a toxic mix”.
We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab.
The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:
“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in which”
the Government
“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.”
But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.
Mr McFadden
With consideration for other speakers, I will press on.
In fact, most of the orders made under the proposed powers, far from being elevated into some kind of special sifting and debate procedure, will go through on the negative resolution procedure, with little or no debate.
On one level, I sympathise with Ministers. The outcome of the Brexit negotiations is so uncertain—in fact, getting an agreement at all is not certain—that they want to confer on themselves the maximum possible leeway in legislating, but Parliament cannot take that view. It has been argued that the best way to raise the issue of executive authority is in Committee and not now, but we already know that the Government propose to give themselves a majority on all Committees even though they did not win a majority at the general election. There is no indication—in fact, the very opposite—that the Government are more likely to listen in Committee than they are now. Parliament’s maximum moment of leverage to call on the Government to think again is not in Committee but now.
We have been told that a vote against the Bill is a vote for a chaotic Brexit, which is a bit rich. There only has to be more than two Cabinet Ministers in a room to produce versions of a chaotic Brexit. When Ministers are pushing against one another, and when letters supported by junior Ministers are being circulated attacking the policy of the Government in which they serve, the Tory party is well capable of producing chaos on its own. We have a legitimate job to do in scrutinising the Government. To further that end, I will vote against the Bill tonight.
Vicky Ford (Chelmsford) (Con)
In last year’s referendum I and many others warned of the risk of uncertainty. That risk has not gone away, but we can work together to reduce it, which is why the Bill is needed. Businesses need legal certainty to trade, create jobs and generate taxes, and the laws that govern our businesses are important. For the past 40 years or so, many of those laws have been agreed at European level. In my time in the European Parliament, I saw how those laws often cover important areas: consumer rights, copyright, product safety, even counterfeit medicines and data protection.
In my constituency of Chelmsford there are about 2,000 jobs in the insurance sector. The UK is home to the world’s largest insurance market, and we provide insurance for airline crashes, cyber-attacks and even to clear up after the horrific hurricane that is raging across the Atlantic today. Our insurance companies can offset such risks by re-insuring with others in the industry, and the industry is governed by the European regulations. Our companies do not want to scrap their rulebook, and the Bill will enable those rules to be moved into UK law; it will help avoid a legal vacuum, which is important. Many laws cannot be directly copied across; technical changes are needed, and Ministers need the powers to make those technical decisions.
The Bill is not perfect; there are many areas where decisions are not technical and policy decisions will need to be made. In the insurance sector we see that the devil is in the detail. Article 16 of the insurance distribution directive says that European insurers can only redistribute their risk to others that are regulated in the EU. We cannot just cut and paste that into our rulebook, as it would cut us out of our own market. Dealing with such examples is not straightforward; policy decisions are needed, and they could affect real jobs. The companies concerned want to be consulted, as will regulators in other countries, and such decisions deserve proper scrutiny.
Other sectors also have concerns. The Bill exempts the charter of fundamental rights, but the tech sector points out that article 8 of the charter is crucial because it underpins data protection laws, which enable the free flow of data. TheCityUK asks what is happening to the level 2 decisions, which are important in implementing much of our financial services law and many of which will arrive only after the date of exit. The consumer organisation Which? points out that EU directives provide not only consumer protection, but product standards and the networks for sharing information on things such as dangerous toys and dodgy electrical goods. What is to happen to those after Brexit?
It is important that stakeholders can raise their concerns, and significant decisions deserve to be properly debated. The statutory instrument mechanism does not give confidence to stakeholders or future trading partners that issues will be properly scrutinised. Some 3,500 statutory instruments are laid before this House every year, yet only eight have been annulled since world war two. The rest of the world is watching us. As a British Conservative, I have spent years working with Ministers, championing the cause of better regulation; we have told legislators all across the EU that before they change laws they should consult those who will be affected, address the impact and make sure that decisions are not just taken behind closed doors. Now is not the time to drop the ball on that at home, because if we are to get deep trading partnerships with Europe and other parts of the world, we need to retain their trust. Where decisions have an impact on other countries, our future trading partners need to know that we are open to listening to their suggestions.
Sir Edward Davey
The hon. Lady is making a powerful point. When I was a Business Minister in the coalition Government, I negotiated with the EU Council on competitiveness to ensure that the EU undertook proper regulatory impact assessments of its regulations. That was a considered approach to make sure that stakeholders were consulted. Under the regulations proposed in the Bill no such consultation will take place, which is far worse and far more damaging than the situation under the EU.
Vicky Ford
I wish the EU had followed that mechanism all the time, then we might not be where we are now. The right hon. Gentleman’s point shows precisely why we need amendments, which I was coming to. Last Thursday, the Secretary of State suggested that he would be prepared to agree to a sifting or triage process, so that technical decisions could be made swiftly but more important policy decisions can have proper scrutiny. The Opposition have not offered any alternative drafting, but that is the sort of amendment we need to see. I will be supporting the Bill tonight, because it is necessary and it needs to move to Committee. We need to make sure we put in place many amendments so that we provide for scrutiny, but this is not a time to just throw out the Bill, because history will not thank those who treat this as another game of political football.
Margaret Beckett (Derby South) (Lab)
On Thursday, the Secretary of State said in this House that this debate and the Bill are not about whether the United Kingdom leaves the European Union; I wish he could convince some of his colleagues of that, as they continue to make that argument even when it is totally inaccurate. The people made that decision in the referendum a year ago and this House endorsed it by triggering the article 50 process this year.
Today, we are not discussing whether but how we leave the EU and, in particular, how this House makes its decisions—not least, as the right hon. and learned Member for Rushcliffe (Mr Clarke) said a few moments ago, with respect to the precedent we will set for the future. In recent days, I have heard a number of people, including the Foreign Secretary, claim that a vote against the Bill would be a vote to obstruct the will of the people. That is arrant nonsense, as I think most of those who make that claim are well aware. To me, it is in fact this Bill that negates the declared purpose of the referendum, which was, as I understood it, to take back to UK legislatures the powers that in recent years we have shared with others through our membership of the EU.
The second thing the Secretary of State said the other day that I found particularly relevant was that no one said this was going to be easy. If only that were so. Actually, as he knows, many Government Members have been claiming that it would all be easy since before the referendum, and indeed ever since. I shall go rather further than he did. Apologies to those present and elsewhere who were not born in 1983, but in that year’s general election, my party made the case that after 10 years’ experience of being in the common market, we ought to leave. We said, explicitly, that unless we left then, our economies and societies would be so enmeshed that in future it would be impossible to leave without inflicting enormous, unsustainable damage on ourselves. That contention was supported by someone I would not normally cite, the late Enoch Powell, who urged people to vote Labour in that election for precisely that reason. Yet it is that task to which the Bill turns us, and which we are now trying to accomplish through the Bill.
In the dialogue during and following this debate, just as in the negotiations themselves, it is vital to establish, if at all possible, a degree of trust and mutual understanding. Yet it seems to me that the Government’s behaviour is almost calculated to undermine any such trust. The short amount of time that has been allowed for the debate does not remotely bear comparison with anything one could call a comparable debate, Bill or set of negotiations. I shall not repeat all the things everybody else has already said and no doubt will say right up until midnight about how the detail of the Bill is in itself so sweeping and so damaging, but there is no doubt that that is the nature of the Bill.
As was said a few moments ago by the hon. Member for Chelmsford (Vicky Ford), in Thursday’s debate the Secretary of State sounded sympathetic to some of the points that were made about the restricted nature of the Bill’s proposals on the scrutiny of the statutory instruments that would be introduced under it. He asked, as did the hon. Lady, that those expressing concern should make suggestions as to the remedy for the problems that the Bill creates, so I shall make three observations to the Minister and, through him, to the Secretary of State.
First, as was mentioned on Thursday, the idea of making use of amendable statutory instruments has been discussed in this House forever. It has never been accepted, for obvious reasons—there are many flaws in such a procedure—but none the less it might be better than the proposals in the Bill. Whether by that means or by others, there are and will be ways to expand the scope of whatever procedures we follow, even if such special procedures were attached to a specific time, or were time-limited. That would be possible particularly if those procedures were linked to any similar limits on the powers that the Government are seeking to take and their duration. It seems by no means to be beyond the wit of man to find much better systems of scrutiny than the Government are putting forward today.
My second observation is that, in searching for such potential procedure, the Government should cast their net wide. As Leader of the House, I proposed, for the first time, the introduction of the programme motion. In giving effect to a previous recommendation of the then Procedure Committee to facilitate the examination of the whole of a Bill, we also addressed the serious drafting problems that existed. We worked with the Clerks, who were, as ever, brilliant in their expertise and helpful in their advice and also with others. The drafts for the procedures, which we were ultimately able to adopt and which the House uses to this day, came through the involvement not just of our Clerks, but of Parliamentary Counsel. Therefore, there are others, across Government, across Whitehall and across the organs of the state, who could contribute to such discussions as to what procedures might work better than what the Government now propose.
Mr Peter Bone (Wellingborough) (Con)
The right hon. Lady is making a very thoughtful speech, but does she think that programme motions have been of benefit to the House?
Margaret Beckett
I have a slight advantage over the hon. Gentleman in that I was in the House before programme motions existed. All I can say is that I part company with him if he thinks that it is better for people to spend hours, indeed days—I mean literally days—discussing whether a Committee should sit on a Tuesday or a Thursday, or whether we should sit until half-past 5 on a Wednesday night, than to spend that time discussing the substance of legislation.
My third point to the Secretary of State is perhaps the most important—I say this also to the hon. Member for Chelmsford. It is not merely the prerogative of the Government to make proposals to this House to remedy the defects in the legislation, but the duty of the Government —particularly in this case—to do so because it is their legislation. My right hon. Friend the shadow Secretary of State advised the Government to withdraw this Bill and produce a more satisfactory set of proposals. I never imagined that I would find myself giving such advice to any Government, but I think that he is probably right.
That brings me to my final point. In essence, this Bill was drafted for a Parliament in which the Prime Minister had a massive mandate. I am talking about a Parliament in which she had been given the free hand for which she had asked the British people—a free hand to make and implement decisions without any serious let or hindrance. Everybody in this House, and those beyond it, know that she did not get that mandate. She did not get that free hand. This Bill is drafted for a reality that no longer exists, and yet the Government are continuing as if—to coin a phrase—nothing has changed. Well, as we saw during the general election, the Prime Minister may feel that nothing has changed, but hardly anyone else shares that view. This is a Bill of enormous consequence. It sets the most dangerous precedents of any Bill I can imagine for this House or any other. My party is right to vote against it. It is those who vote for it who are at risk of rejecting the view that the British people expressed in the general election.
Mr Peter Bone (Wellingborough) (Con)
It is a great honour to follow the right hon. Member for Derby South (Margaret Beckett). She made a very thoughtful speech. One point on which I entirely agree is that, as this Bill passes through the House, we can look at better ways to scrutinise secondary legislation in particular. It seems that the Government are right that they will have to use secondary legislation, but it does not mean that all Delegated Legislation Committees must look the same. We do not have to have a one-and-a-half-hour DL on a technical matter of no importance whatsoever. However, if there is a Committee of some importance, why not extend the hours? Any Member can speak in a DL Committee, so there are ways we can improve scrutiny. That is what the Committee of the whole House should do when it considers the Bill.
I would be very surprised if the Bill finishes up in exactly the same format at the end as at the start. The Government would be well advised to accept reasonable amendments that improve the situation, but the principle of this Bill is quite simple.
Chris Bryant (Rhondda) (Lab)
On delegated legislation, the hon. Gentleman seems to think that it is okay if something is debated in Committee, but the truth of the matter is that the only motion that can be considered in a delegated legislation Committee is whether the Committee has or has not considered the matter in hand. In other words, if every member of the Committee voted against, the legislation would none the less come into law. That is the danger of relying on secondary legislation.
Mr Bone
I think the hon. Gentleman would agree that if the affirmative mechanism were used, the whole House would vote on the matter, so I do not accept his argument.
This Bill is about a principle: I think it is called the European Union (Withdrawal) Bill, and I think I introduced—
Mr Bone
Not for a moment, because on this particular point I think I am right: it is called the European Union (Withdrawal) Bill. I remember introducing a number of such Bills, or certainly speaking in favour of a lot of them. At that time, they were rather dismissed by the Government and we did not make much progress, so if I have an opportunity to support a Government Bill called the European Union (Withdrawal) Bill, as I do tonight, then I am going to take it, and I hope other Members do too. What the Bill primarily does is end European Union legislation and control over this House when we leave, while the second bit incorporates all EU laws into our laws—“retained EU law”, it is called. It is quite right that in future we should look at all those laws and decide whether to improve, reject or keep them, but there has to be a mechanism when we come out to have all those laws in place or chaos will occur.
Sir Edward Leigh
The hon. Member for Rhondda (Chris Bryant) raised a very important point in his intervention that has to be dealt with clearly on the Floor of the House. Personally, I am in favour of any compromise—any triage process, as suggested by my right hon. Friend the Member for Broxtowe (Anna Soubry) and others—but on this point my hon. Friend the Member for Wellingborough (Mr Bone) must be wrong. The House has a right and the powers, and historically it has been able to reject delegated legislation—otherwise what sort of Parliament are we in?—so he is making a wrong point.
Mr Bone
I thought that was the point I made: that this House could ultimately reject a DL. That is clearly what happened: we vote on it. I remember, and we vote on them all the time—my hon. Friend the Member for Chelmsford (Vicky Ford) mentioned at least eight times that they had been annulled.
Chris Bryant
Under the negative procedure, which is referred to regularly in the Bill, it is entirely up to the Government whether to allow a debate and a vote at all, and in the last 12 instances where the House has demanded a debate and a vote, including on very important issues, they have granted them on only four occasions.
Mr Bone
No!
Basically, this Bill is about the principle of ending EU control over this House and incorporating those laws. That is fine, and that is why every Member of the House should vote for it tonight. What they should then do is look in Committee, clause by clause, at how we are proposing to scrutinise, change and incorporate laws. I wholly accept that the negative SI procedure is probably not the best way of proceeding.
Another thing that has been mentioned—the right hon. Member for Derby South brought it up, and it is probably what I wanted to talk about most—is programme motions. As a principle, I am against programme motions. I accept entirely the answer she gave me, which is that it was a lot worse before. However, she did not go on to say that it is great now, and I do not think it has been. There have been a lot of problems with the Government deciding programming and the timing of scrutiny.
Now, this particular programme motion is one of the better ones, because the debate is eight days long, with eight hours’ protected time each day. I am fed up of sitting here waiting for a debate, only to find that there is statement after statement, which reduces the time we have for that debate. Thankfully, we are not doing that this time, and if there is a need for extra time, the Leader of the House would be well advised to grant it.
I was here at business questions on Thursday, and the shadow Leader of the House did not complain about the timetabling. [Interruption.] Well, I must have been deaf, because I was listening out for it. She moaned about a lot of things, but she did not complain about the length of time.
Mr Bone
Well, I will stand corrected if that is the case.
Anyway, the point I wanted to make is that it should not be up to the Government to timetable business in this House. By fortune, I have a ten-minute rule Bill tomorrow that introduces a business of the House commission. If that Bill was law, we would not be worrying about all of this now, because timetabling would be decided by the House, with a commission putting its recommendations to the House once a week to vote on. So we are having a row about something when we do not need to.
If only we had listened to David Cameron, the former Prime Minister, when he said in his “Fixing Broken Politics” speech—one of his best speeches ever—that we should have this House commission. It was, of course, also in the coalition Bible, and we guaranteed that we would have that House commission within three years of the coalition’s coming into power. I do not know why that did not happen; I assume it just got overlooked. It would be quite wrong of me to say that the two Whips Offices were absolutely opposed to losing their power—it could not possibly have been that.
All that I am doing tomorrow is, hopefully, reintroducing something that was the policy of the former Prime Minister, the Conservative party, the Liberal Democrats and the Wright reforms. If we had had that commission, all the arguments and worries on the Opposition side would have disappeared.
Mr David Lammy (Tottenham) (Lab)
I am very grateful for the opportunity to speak this afternoon. Let me start by saying that it is possible for parties to work together to find consensus and bipartisan moments. I see the Secretary of State for Justice in his seat; we have been working together on the review his predecessors asked me to do on the over-representation of black and ethnic minority people in the criminal justice system, and I am grateful for his support and that of his civil servants over the last 18 months.
I wish that I could be speaking in a spirit of co-operation on this subject, but when I think about the Prime Minister taking the position she did and talking about bringing the country back together, I think how far we are from that. Those who wanted to leave talked about giving the British people control—taking back control. Why, then, are we producing a Bill that will, effectively, give that control to the Government of the day, to make decisions behind closed doors, and not to this Parliament, which represents the democratic will of the people? If the Government are genuine about bringing the country back together, surely they allow serious time for reflection, debate and serious amendments to a Bill of this magnitude. Surely they should also come to this House with a degree of humility, having recognised that their proposition at the general election failed spectacularly, and that the context today is very different from the context three or four months ago. None of that has happened.
Then we look at the beginning of the negotiations. We hear a lot about the bill the EU is asking us to pay, but I have to say to those who campaigned to leave, and who are adamant that we should leave, that we are taking 12% of the EU budget out by exiting. We are asking others to pick up that bill. Of course there is a serious bill to pay, and of course it will take months to negotiate it.
We have heard so much from the Secretaries of State for Brexit and for International Trade about how easy this will be. When they go to negotiate with Donald Trump, who is one of the most protectionist Presidents the United States has seen, he will surely want access to our pharmaceuticals and will demand access to our agriculture. It will not be easy; it will take months and years to reach that trade deal. As for those who spend so much time on free movement of people and immigration, when we go to negotiate with the Indians, will they not demand visas for people to come to this country?
I worry, as I am sure hon. Members will understand, about what we have unleashed in this country, about the increase in race hate, and about the nastiness that surrounds this debate. No party is the font of all ideas, but I worry hugely about how the Conservative party has moved to the right to pick up ground ceded by the UK Independence party—[Interruption.] I do. We are in times in which the Anglo-American world is looking inward, in which we are moving back from human rights and in which we are waving goodbye to battles that we fought in decades gone by. This is not the time for this House to spend months and years wrangling about exiting a European Union that has given us so much.
For all those reasons, with very little to be gained—and when the articulation of what is to be gained has been so poor in the past four months—how could we possibly be about to set off on this path? In a constituency such as mine, where people are struggling to make ends meet and the economy is very fragile, as sure as night follows day, as we exit a customs union that the British Retail Consortium—
Anna Soubry
I share the right hon. Gentleman’s concerns. I share his views, and would have campaigned with him to remain, but the simple truth is that the majority of those who voted—52%—voted to leave the European Union. On that basis, we must begin the process of doing so and must see it through, even if he and I do not agree with it.
Anna Soubry
Would the right hon. Gentleman like to take that back? Things such as getting a White Paper, which my right hon. Friend the Prime Minister said she would not give—that is what people like me achieve. The real opposition to much of this comes from those on the Government Benches, not on his.
Mr Lammy
I am not sure that the right hon. Lady really wants me to respond.
The point is whether we can get beyond the partisan. I represent a constituency where many people are struggling. Our economy is likely to take a real hit as a result of this move. Trade deals are an aberration and are some years in the future. If we exit under World Trade Organisation rules, we are in for huge rises in tariffs, consumer prices and, potentially, inflation. For that reason alone, in the best interests of my constituents and many people across the country who do not have the privileges of most people in this House, I shall absolutely vote against the Bill.
When we talk about the will of the people, let us remember the 48% who voted against this. Let us think about what they deserve: a Bill that does not grab powers from them; a Bill through which we have ample time to discuss all these issues; and a Department that actually understands the position of the 27 European countries, and faces up to the fact that we are going to have to pay. They do not want to be told that this is going to be easy—that the whole of the European Union cannot wait to do a deal with us. That is not what they recognise. For that reason, it is important that this House does not let this Bill go forward.
Craig Mackinlay (South Thanet) (Con)
I shall raise just one issue in the short time available: the living marine resource that under international law is bestowed on the United Kingdom.
The great repeal Bill has changed its name to the European Union (Withdrawal) Bill, the second half of which, which brings virtually all the EU’s acquis into domestic legislation, causes me a few concerns. The reason for most of that is completely understandable. It is entirely necessary, because when the termination date of article 50 of the treaty on European Union is reached and EU treaties cease to apply in this country, along with the EU regulations that take their authority from the EU treaties, vast swathes of domestic legislation will simply disappear. Bringing the acquis across will fill that void, which can be sorted out at a later date.
The method by which that will be sorted out has caused a great deal of debate in this House. In my opinion, the method that has been proposed is entirely necessary and desirable. I support it completely for legislation that is applicable only to the United Kingdom, but when dealing with legislation that involves relationships outside the United Kingdom, such as the common fisheries policy, I have a few concerns, because the body of legislation—the acquis—that is the CFP is made up almost entirely of regulations. The only way we can achieve compatibility is through a legally binding withdrawal agreement, and that in itself brings some problems. First, at this stage, we do not know what that agreement will contain. Indeed, we do not even know if we will be getting an agreement at all, such has been the appalling behaviour, sadly, of our EU partners.
Secondly, taking the common fisheries policy as an example, article 50 takes us out cleanly, so there is no possibility of future legal challenges that we would have to try to avoid. Regulation 1380/2013, which will be brought across by the Bill, will re-establish the common fisheries policy in all but name, possibly paving the way for a legal challenge, perhaps via the Vienna convention on international treaties, through the withdrawal agreement. The evidence of that is the acquis that we have accepted and transposed into UK law, thereby creating a continuation of rights thereon.
I would like to see the proposed fisheries Bill, which is due before us at some stage, and which could solve the problem. We have no idea what that Bill will contain. Will it continue to give away the nation’s wealth that is its fish? Will it continue the disastrous CFP policy of quota allocation, which puts the resource in the hands of a few, and is the cause of the completely immoral discarding of prime fish that we have seen all these years? We simply do not know. Why are we going down this tortuous route when the easiest route would be to exempt the entire fisheries acquis from the withdrawal Bill, and produce a fisheries Bill, coming into force on 30 March 2019, that confirmed what international law bestows on this nation? That is not unusual, because the withdrawal Bill already exempts parts of the charter of fundamental rights.
Fishing is the area in which the British people demand a clean Brexit, and I think they will accept nothing less. Fishing must not be used as part of a trade-off, and availability must not form part of a deal elsewhere. Control of our exclusive economic zone extending to 200 nautical miles or the median line will regenerate our coastal communities, but if we follow current fisheries policy, we will certainly fail to do that. It is quite odd that we commit vast amounts of cash to communities such as mine in Ramsgate, Broadstairs and parts of Margate through the coastal communities fund—I am thankful that we do—but we seem to have no clear commitment to the one thing that could provide great rejuvenation for our coastal communities, which are recognised as having lower rates of employment, and which are in need of restructuring and infrastructure.
On this subject, the electorate are very wary of shenanigans. We cannot afford to create failure, and it is our responsibility to make this a success. I am happy to trust the Government by supporting Second Reading tonight, but I would very much like to hear more about their proposals for restoring one of this nation’s finest treasures—our very positive fishing grounds, which have the potential to benefit our communities and should never have been taken away.
Richard Graham (Gloucester) (Con)
My hon. Friend is absolutely right to have rejected the proposition of the right hon. Member for Tottenham (Mr Lammy) that we should carry on fighting on arguments that were decided in this House some time ago, and is right to want to get on with making arrangements for the future. Does he agree, however, that elements in clauses 7, 8 and 9 need looking at in more detail, particularly when it comes to the use of statutory instruments?
Craig Mackinlay
I agree with my hon. Friend entirely, but today is not the day for those arguments. Arguments about technical matters—how things will be changed in the House, and whether that will be done using statutory instruments and the exercise of ministerial powers—are for Committee and subsequent stages of the Bill. The broad thrust of my argument on Second Reading is that this Bill is the only means by which we can deliver the result of last year’s historic referendum, which was delivered by 52% of people. I know that some in this House would rather we ignored the voice of those people, but we do so at our peril.
The whole issue of our fishing policy encompasses a lot of what was wrong with our membership of the European Union, which would not listen to us. The Bill represents a great opportunity for our coastal communities. I intend to deliver a good fishing policy for our under-10 metre fleet, which is particularly prevalent in Ramsgate, so I will support this Bill tonight.
Albert Owen (Ynys Môn) (Lab)
The Bill has been described as “not fit for purpose”, and as a “monstrosity of a Bill”. I agree with both those descriptions, and that is one of the reasons why I will not support it on Second Reading. I believe that it undermines this sovereign Parliament—and, indeed, other Parliaments and devolved Assemblies in the United Kingdom.
I respect the result of the EU referendum. My constituency voted narrowly to leave—very narrowly, by some 700 votes—so I understand both sides of the argument. My constituency mirrored the UK and Wales in voting to leave. In the EU referendum campaign, I said that I would vote for article 50, and I did so, because I accepted and respected the referendum. In the general election campaign of 2017, I said I would support a “sensible Brexit”, and I will, but not by bypassing Parliament.
I told the electorate that I would respect the devolution settlement in our country, and I will. The Bill will be enacted to replace the European Communities Act 1972. A lot has happened since 1972, not least the setting up of devolved Administrations by referendums and by Acts of this sovereign Parliament. When we talk about the legislators taking back control, we mean just that—legislators, in the plural. The competence of those Assemblies and of Parliament needs to be protected, and the Bill does not do that. It talks about consultation and discussion, but it does not talk about respecting the devolved Administrations.
Although I am unhappy with the replies I have received from the Government about the Irish border issue and the Irish dimension, and how that will have an impact on Welsh ports, as well as about Euratom—I led a debate on it, and we will need an associate or alternative membership with our colleagues on it—it is not for those reasons that I will vote against the Bill tonight, but because the Bill undermines parliamentary democracy. I will take no lectures from the Secretary of State for Exiting the European Union or the Government on delays, a cliff edge or creating chaos, because as colleagues have said, they have already done that. They spent months—months—denying the referendum result, and trying through the courts to prevent this House from enacting article 50, which was a costly process. They spent months this year having a general election, which cost millions of pounds and delayed this process by many months. This PM went to the country and said she wanted to increase her majority to increase her mandate. She did not achieve that: she lost her mandate, and she lost the moral authority to carry on as normal.
Mr Jim Cunningham (Coventry South) (Lab)
Does my hon. Friend not agree that the Prime Minister, having been denied the mandate for the hard Brexit that she wanted, is using the Bill as another method of achieving that objective?
Albert Owen
Yes, I agree. As I have said, the Prime Minister just thinks it is business as usual, but she is now leading a minority in the House. In her words, she wanted to increase her majority to increase her mandate, but she does not have the moral authority or, indeed, the numbers in the House of Commons. It shows the Government’s arrogance that she now wants to rip up the result of the general election and ignore the will of the people who have taken away the Tory majority.
The other item I want to raise is the timetable—the programme motion—because I do not think that eight days are enough to debate the issues properly; when we have very complicated hybrid Bills in the House, we are given far longer to scrutinise them, so it is wrong. I think, tomorrow, the Government want actually to rig the Committees. Transferring powers from the European Union to the hands of those involved in delegated legislation is a very dangerous step for us to take: the Government are grabbing powers and putting them into the hands of Ministers. As I have said, they are not respecting the devolved Administrations, which were set up following referendums and have been given powers by the House of Commons.
The Opposition’s reasoned amendment is sensible. It amounts to what I would describe as a sensible Brexit. For instance, it respects the charter of fundamental rights, which we would put into UK law, and we would propose sensible transition arrangements. Again, the Government are now talking about a cliff edge and a timetable, but if we had sensible transition arrangements—this is mentioned in the reasoned amendment—that would be avoided. For those reasons, I will support the amendment tonight.
The will of the people in the 2017 election must be respected, and the will of the devolved Administrations must also be respected. It is time for this Government to go back to the drawing board. For those reasons, I will vote against the Second Reading. I do not think that the Bill can be amended to the satisfaction of many Government Members in Committee, and they know it. It is time for this House of Commons and this sovereign Parliament to stand up and be counted on behalf of the people who sent us here.
Conor Burns (Bournemouth West) (Con)
We are here today debating this Bill as a direct consequence of the free vote of the British people in the referendum last year, when they gave us their explicit instruction that we were to withdraw the United Kingdom from the European Union. There was an extraordinary article in The Mail on Sunday yesterday by a Member of the other place, who said the Government were rushing this decision because they were afraid that the people would get their hands on the decision, but it is because the people did get their hands on the decision and decided to leave that we are here today.
Many of us who campaigned in the referendum to leave did not do so out of any sense of flippancy. I came to the conclusion over a long period. I came to it disappointed, after decades of listening to successive Governments and Prime Ministers talking about how we were going to reform the European Union from the inside, with subsidiarity and all the rest of it. That body gradually acquired all the attributes of statehood and citizenship: a flag, an anthem, a currency, a Parliament and a supreme court. For me, it became the antithesis of what an independent nation state was all about. Those of us who campaigned to leave were clear in our objectives: we wanted to make our own laws in this country; we wanted to sign our own trade deals; and we wanted to end the massive payments to the European Union and decide our own immigration policy.
That is what the Bill sets us on the road to do. Clause 1 makes it clear that the European Communities Act will cease to apply on the day we leave the European Union, and it provides that, the day after exit, the House and our courts will be supreme in making the decisions that affect us in this country. It is the mechanism to transpose the body of law under which we live, much of which emanated from the European Union over a period of almost 45 years, into United Kingdom law. It rightly makes little mention of some of the fundamental things that affect us as a country. Correctly and properly, the Government have committed to introduce legislation on the Floor of the House on some of the big matters. Bills that will be put before Parliament include a customs Bill, a trade Bill, an immigration Bill, a fisheries Bill, an agriculture Bill, a nuclear safeguards Bill, and an international sanctions Bill, all of which were announced in the Gracious Speech after the general election this year.
The Bill also puts specific limits on the powers that are laid down. The Government cannot make regulations to impose or increase taxation; to make retrospective provisions; to create relevant criminal offences; or to make regulations to implement the withdrawal agreement. Crucially, there is a sunset clause, so that two years after we leave the European Union the measure will cease to apply. I will be 45 in two weeks’ time. Her Majesty gave Royal Assent to the European Union Communities Act 1972 just a month after I was born. Although I gained political awareness reasonably early, I have not been politically aware throughout that entire period of nearly 45 years. I do not recall, in the period in which I was politically aware, great complaints emanating from every part of the House about the constant stream of legislation from the European Union that was implemented unscrutinised and which we had to obey.
The Government are putting that sunset clause in place. I am sorry that the right hon. Member for Wolverhampton South East (Mr McFadden) said that there was confusion among Government Members, and a difference of opinion about our policy on leaving the European Union. He could easily, and perhaps more effectively, direct that at his own Front-Bench team. The shadow Home Secretary supports free movement. The Leader of the Opposition and the shadow Secretary of State for Exiting the European Union say that it must end. The deputy leader of the Labour party says that we would stay in the single market forever. The shadow Chancellor says that we should leave the single market to respect the referendum. The shadow Secretary of State for International Trade has said that staying in the customs union would be a disaster; the shadow Secretary of State for Exiting the European Union supports the UK staying in a customs union; while the deputy leader of the Labour party says that we could stay in the customs union indefinitely. One could be forgiven for thinking that Opposition Front-Bench spokespeople are getting their inspiration from Heinz, with 57 varieties of Brexit on offer. While the Government have introduced a sunset clause in the Bill to make sure that its provisions cannot last for more two years, Labour policy on Brexit can barely last two days. If it lasts two weeks it appears to be a long-term policy indeed.
Before the general election, the House voted overwhelmingly in favour of the European Union (Notification of Withdrawal) Bill. Tonight, it should do the same on Second Reading of the European Union (Withdrawal) Bill. In the words of one of my more succinct correspondents, who wrote to me yesterday and urged me to tell the House:
“For goodness’ sake just get on with it”.
Chris Bryant (Rhondda) (Lab)
This Bill is utterly pernicious. It is dangerous, it is fundamentally un-British and it has at its heart a lie. It pretends to bring back power to this country, but it actually represents the biggest peacetime power grab by the Executive over the legislature, by the Government over Parliament, in 100 years. It allows the Government to drive through changes to any law by the simple fiat of a Minister. That includes the powers of the House of Lords, the date of the next general election, the composition of the House of Commons and the number of Ministers. In the most extreme instance of all, it allows Ministers to alter the very Bill itself. That is a dangerous spiral of autocracy. Some Members seem to think it is a compliment to refer to them as Henry VIII powers. I know that Henry VIII, in 1536, legislated to allow two MPs to come here from Calais, but on the whole the Tudor exercise was not a proud demonstration of democracy. These are clauses of which Erdoğan, Maduro and Putin would be proud.
Sir Oliver Letwin
I am very grateful to the hon. Gentleman for giving way and I am sorry to interrupt his flow of eloquence. Is he conscious of schedule 7, in particular part 2, and especially paragraph 6, sub-paragraph 2, sub-sub-section (g), in which it is made perfectly clear that it is only by affirmative resolution, and not the fiat of Ministers, that amendments to Acts can be made?
Chris Bryant
I am perfectly aware of all the measures in schedule 7, but I merely point out to the right hon. Gentleman that, since the Bill itself can be changed by the Government, that is one of the elements the Government can change. What happens, even under the affirmative process—this is the problem with secondary legislation—is that, because there is no opportunity to amend, the Government will say, “Take it or leave it”. They will then suddenly say, “There is a real emergency and you’ve got to take it, because otherwise there will be chaos.” That is the sword of Damocles that Governments always hold over Parliament when a clause hands matters over to secondary legislation.
Sir Oliver Letwin
I am doubly grateful to the hon. Gentleman for giving way. Will he withdraw his remark that it is by ministerial fiat, and resort instead to the argument that the drafting would enable the Government to exert some pressure on Parliament, which presumably he and his colleagues would resist?
Chris Bryant
No, I am not withdrawing it. The Bill, at several points, makes it quite clear that the Government will hold powers to bring in regulations under secondary legislation through the negative process. The whole point about the negative process is that the statutory instrument comes into law unless it has been annulled, and the only process by which it can be annulled is if the Government themselves allow time for us to debate the matter and to have a vote. I would be happy to trust the Government if in recent years—I do not know why the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker) is looking up at that point; he never used to trust the Government until he became a Minister—they had been happy, since 2010 or 2015, to honour the traditional doctrine of the House, which is that if the Leader of the Opposition demands a vote and a debate in this Chamber there will be one. They have, however, consistently refused to do that. Enormous changes to our law, affecting student nurses and every student in the land, and affecting benefits for all our constituents, have been driven through via secondary legislation. It should never have been used for such measures, without us ever being able to insist on having a debate or a vote. The worst of it, to which I have already referred, is that when we do have a debate, the Government get to decide whether it should be in Committee or on the Floor of the House. If it is in Committee, all we get is a motion stating whether or not we have debated the matter in hand.
Chris Bryant
I am not giving way to the right hon. Gentleman again. I am sure he will manage to catch your eye, Mr Speaker.
It is not as if the Government do not accept that they will have to introduce hundreds and hundreds of statutory instruments. What they should have done, before introducing the Bill, was suggest an alternative way of dealing with this process over the next two years, so that there can be proper triaging of genuinely technical and minor consequential amendments to legislation that need to happen, and significant measures where the whole House would want to take a view.
Since 1950, Parliament has rejected only 11 statutory instruments, so we know that this is an autocratic process, but let me get to a much bigger worry for me: clause 9. I am sure that hon. Members have read it. It states very clearly:
“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”
When I said last week in the House that this was truly exceptional, all sorts of Government Members, including Ministers, came up to me and said, “Oh no, there are hundreds of examples. I’ll give you examples by the weekend.” The first example I was given was the Scotland Act 1998, but it does not apply. Section 113(6)—I am sure the right hon. Member for West Dorset (Sir Oliver Letwin) will know this subsection—states:
“But a power to modify enactments does not…extend to making modifications of this Act or subordinate legislation under it.”
In other words, the Minister who told me that had missed out the word “not”, rather conveniently.
Then the hon. Member for Stone (Sir William Cash) came up to me and said, “No, you’re completely and utterly wrong. The greatest constitutional expert in this country”—I think he might have meant himself—“tells me that section 75 of the Freedom of Information Act 2000 gives the Government the right to change the Act itself by statutory instrument”. Unfortunately, he was wrong as well. It actually states:
“If…it appears to the Secretary of State…that…the enactment is capable of preventing the disclosure of information”—
in other words, gives the Government too much power to prevent disclosure—
“he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition.”
It is a measure that gives the Government not more but less power. Even the Civil Contingencies Act 2004, which applies to circumstances when by universal accord—probably—the Government would need emergency powers, and which builds on previous Acts of Parliament, states categorically, in section 23(5):
“Emergency regulations may not amend…this Part of this Act”—
in other words, all the major elements of the Act.
If hon. Members who are trying to cover their tracks by saying, “We think all this secondary legislation business is terribly worrying, and obviously we’ll change that in Committee”, really care about those matters, they should consider the Government’s track record. What have they done recently? They engaged in what I would call jiggery-pokery with the DUP to ensure a majority—and let us hope we have a vote on Estimates Day on the £1 billion for the DUP; they delayed setting up Select Committees until now to make it impossible for us to scrutinise many of the measures going through during the summer months; and tomorrow, they are trying to make sure that, for the first time in our history, a Government without a majority in the House have a majority on every single Committee. If that does not make one question the bona fides of this Government, nothing will, and that is why I say to hon. Members: do not sell your birthright for a mess of pottage; vote against this Bill!
David T. C. Davies (Monmouth) (Con)
Twenty years ago, almost to the day, I was involved in another bitterly fought referendum campaign in which both sides accused the other of exaggerations and even outright lies. The result was extremely finely balanced, our nation was divided and many were of the opinion that the Government of the day had absolutely no right to proceed with such a profound constitutional change on the basis of a tiny majority. I refer not to the EU but to the Welsh devolution referendum.
There the similarities end. The day after the Welsh Assembly referendum, I did not see BBC reporters trawling the streets of Cardiff or Swansea for anecdotes about people who had allegedly voted one way and then changed their minds—I can well remember in fact that BBC reporters from Wales could hardly contain their delight—and we did not see business representative groups and trade unions whipping up fears about the future of the economy; instead, they embraced the opportunities. Those of us who had been actively involved in the campaign against the Welsh Assembly realised that, whatever we thought of the result, the people had spoken. Even though it was a narrow margin—much narrower than in the EU referendum—and on a much smaller turnout, we did not try to stop the process. We did not try to take the Government to court. In fact, we got involved in the shaping of Welsh Assembly standing orders through a body called the National Assembly Advisory Group.
The First Minister of Wales and some of his colleagues in Parliament would do well to remember that. He and others have been complaining about a power grab and making accusations about undermining the Assembly—
David T. C. Davies
I will give way in a moment. I am coming to something the SNP said earlier.
The only powers being grabbed are those being grabbed from Brussels and taken back to London. There is absolutely no grabbing of powers from Cardiff. Earlier, my hon. Friend the Member for Stirling (Stephen Kerr) asked the hon. Member for North East Fife (Stephen Gethins) whether he could name a single power being taken from Edinburgh, and he could not name any.
David T. C. Davies
I am happy to give way to his colleague to see if he can come up with a few.
Peter Grant
The hon. Gentleman is keen to draw parallels between the EU referendum and that which established the Welsh Assembly. The result of the EU referendum casts great doubt over the continuing human rights of 3 million people living in these islands. Can he name a single person whose human rights were threatened as a result of the Welsh referendum 20 years ago today?
David T. C. Davies
It was about the same number of EU nationals whose human rights are being threatened by the latest referendum. One of those 3 million is my wife. Not a single Government Member has ever suggested stripping EU nationals of their rights. We are totally opposed to that idea. I am happy once again to say on behalf of all my colleagues that none of us wants to do anything to take away the human rights of the hard-working, law-abiding EU citizens in this country. We welcome them as much today as we always have.
We are not taking powers away from Cardiff, Edinburgh or anywhere else. In fact, over the last few years, Conservative MPs have voted several times to give significant extra powers to the Welsh Assembly—and, I believe, to the Scottish Parliament. To be honest, if I am going to criticise my own colleagues, I would criticise the number of extra powers we have given to the Welsh Assembly and will do again. I probably will not be quite as enthusiastic about that, but there we are. The Bill will actually strengthen devolution. It will mean more powers for the Welsh Assembly in the not-too-distant future, and it will be much easier to transfer powers from the Westminster Parliament back down the M4 than it would be if those powers stayed in Brussels. Let us be frank about that. If those powers were to stay in Brussels, they would not come to the Welsh Assembly at all.
It is time for Opposition Members to do what those of us who opposed the Welsh Assembly did 20 years and recognise that it is the will of the people, including in Wales, which voted for devolution and to leave the EU. It voted mainly for Conservative and Labour MPs in the last election who stood on a manifesto commitment to respect the referendum decision and bring Britain out of the EU. The people having made their voices heard over and over again, it would be an outrage if we did what Commissioners in Brussels have done many times in the past few years and went against the stated will of the people. The Bill represents a great day for democracy in Britain, including in Wales, and I look forward to joining my colleagues in the Lobby to support it tonight.
Caroline Lucas (Brighton, Pavilion) (Green)
In view of the limited time, I will focus on just three aspects of this deeply dangerous and undemocratic Bill. First, I wish to add my voice to the many on both sides of the House expressing enormous concern about how the Bill allows the Government an unprecedented power grab. I congratulate the hon. Member for Rhondda (Chris Bryant) on his masterclass about how this undermines our sovereignty and represents a wholesale shift of power from elected representatives in Parliament to Ministers and civil servants acting without the encumbrance of accountability or democratic scrutiny.
Regardless of one’s views about Brexit, the Bill is a constitutional outrage. The rank hypocrisy that these proposals to undermine parliamentary sovereignty are being led by precisely those Members who sold the leave argument last year on the supposedly noble ideal of restoring exactly that sovereignty is breathtaking, even by the standards of Government Members. That is why measures to circumscribe those powers are so vital, including measures based on proposals, such as those of the Hansard Society, to establish a sift and scrutiny system for delegated legislation in general. The current processes are already manifestly failing.
Secondly, I want to highlight concerns about the Bill’s impact on environmental protection, and, in particular, about the governance gap—the Bill’s failure to provide for the proper enforcement of environmental laws and standards post-Brexit. So far, there has been no evidence that Ministers recognise the scale of the challenge. Research conducted by the House of Commons has identified more than 1,100 pieces of EU environmental legislation that are the responsibility of the Department for Environment, Food and Rural Affairs, yet the issue did not appear in the Prime Minister’s Lancaster House speech, has not appeared in the Secretary of State’s statements so far, and certainly does not appear in the Bill.
Cutting and pasting laws from the EU’s statute book into the UK’s is simply not enough, because laws are only as effective as the mechanisms that implement and enforce them in practice. In the absence of mechanisms to replace the monitoring and enforcement roles of the European Commission and the European Court of Justice, we will effectively be left with zombie legislation—it may be on the statute book, but it will not be enforceable. There needs to be positive action to create a new Government system including proper implementation, compliance and enforcement. When the Government argue that judicial review can adequately provide the sole mechanism for civil society to challenge the application of environmental law, it shows how little they understand the limitations of JR. It is far too limited in scope and remit, and in terms of access, remedies and sanctions.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Will the hon. Lady give way?
Caroline Lucas
I will keep on for a little bit longer.
We need to transfer explicitly into UK law the key general environmental principles that are enshrined in the EU treaties: the precautionary principle, for example, and the “polluter pays” principle. A further regrettable omission from the Bill relates to animal welfare. The protocol on animal sentience which is so vital to our animal legislation was incorporated into article 13 of the Lisbon treaty, but the text of that treaty is not itself covered by the Bill, so the wording of that article is not replicated. I intend to table amendments on that issue.
Thirdly, and more substantively, I am deeply concerned that schedule 8 effectively ends the UK’s membership of the single market and the customs union. That is yet another masochistic red line from Ministers who are intent on leaving the EU whatever the cost to the UK’s economy, and regardless of the damage to the country’s long-term prosperity. Analysis indicates that leaving the customs union would result in a £25 billion-a-year hit to the UK economy and a Brexit bureaucracy bombshell for UK firms. So much for Brexit’s leading to a bonfire of red tape.
Ministers seem to think that they can just conjure up, in a few months, a customs union that is not “the” customs union, but which will deliver exactly the same benefits as those that we have now, and all that without paying for membership of the EU. I look forward to seeing how they plan to achieve that amazing feat, as I am sure that quite a few of my constituents would like to enjoy the benefits of institutions in Brighton without having to bother to pay the membership fee.
Far from transferring all EU law into UK law, the Bill fails to preserve the right to freedom of movement. Let me be very clear: my party’s policy on freedom of movement is unequivocal—we believe that it not only benefits our economy but, crucially, benefits our communities as well. Being able to work, study, live and love in 27 other member states is a precious gift. It is one that we should be extending to an increasing number of our own young people, not shrinking—not closing down their horizons; not denying. I also believe that we should say loudly and proudly that we celebrate the contribution of EU nationals who come to make a life here: they enrich our society.
I believe that, as people become increasingly aware of the human and financial costs of Brexit over the coming months—those costs were never made clear during the referendum campaign—they should have the right and the opportunity to change their minds, if they choose. When people take out phone contracts, for heaven’s sake, they have a chance to look again and to revisit their decisions. Why would we deny them that possibility when it comes to the biggest decision that this country has made in generations? That is why my party is committed to the proposal of a ratification referendum: a chance for people to judge the final deal that comes back from Brussels in the light of all that we are learning now about the costs of leaving, which were never apparent during the referendum campaign.
People who voted leave did not vote for falling wages, lower living standards and rising inflation. I do not believe that they voted to trash environmental protection, to create massive staff shortages in our hospitals and care homes, or to see food rotting in the fields because of the lack of workers to cultivate it. I do not believe that they voted to slam the door shut on our centuries-old tradition of proudly welcoming people from overseas. The very real consequences of Brexit were never spelt out in what was surely the most mendacious, toxic and cynical referendum campaign that we have ever seen, and that is why I shall vote against the Bill’s Second Reading.
Mr Robert Syms (Poole) (Con)
The House voted six to one, with its eyes wide open, for a referendum. Implicit in that result was the determination that the British people would decide what their destiny was to be, and they did so, clearly, in June last year. The House accepted that decision when we triggered article 50. What we are discussing today is giving the Government the means to deal with what I believe to be the most complex legislation with which any Government have had to deal for generations.
The Government are very sensibly trying to put all EU law into British law so that the day after we leave there will not be chaos, there will not be lawyers running around suing various people, and we will have legal certainty. If this were a really vicious, horrible, right-wing Government, they would be going through the lot deciding what they were going to get rid of, but they are not doing that. They are putting legislation on workers’ rights, welfare, the environment and a range of other issues into UK law so that future Governments—probably not this Government—can decide at their leisure what they will keep, what they will improve, and what they will change in the traditional British way: by producing a Green Paper and a White Paper, and presenting legislation to the House. Future Governments will have more scope for policy change and adjustments than any since the 1970s. We are gifting to future Parliaments, whoever will control them, the ability to control the destiny of our nation.
This is all that we are trying to do in the third part of the Bill. We know that, inevitably, there will be holes in the legislation. We will try to dam them up so that the legislation works and the legal system has certainty. There is nothing wicked about that; it is actually very sensible. Anyone who talks to most business people, local authorities and individuals will find that what they want is for change—if there is to be change—to be gradual and managed change, not chaos.
I have been in the House long enough to know that when legal cases arise and events occur, Governments sometimes come up with rushed legislation to fill a gap. They do so in a day, sometimes with manuscript amendments. We know that when we leave the EU at the end of March 2019, there will be holes in legislation that will need to be plugged, either before we leave or just afterwards. That is extraordinary, and I think it is a one-off, but I also think it is necessary. There may well be nuances in what we can do with the legislation. Statutory instruments themselves are not ideal. One of the reasons why many cannot be amended is that they often deal with European directives that cannot themselves be amended.
Perhaps, in the course of the eight-day Committee stage on the Floor of the House, there will be means of improving parliamentary scrutiny. When I look at the Secretary of State and other Ministers, I get the feeling that they are in listening mode. If someone comes up with a perfectly sensible suggestion for dealing with what will be a terrible problem, they will adopt it. If that means our not having an Easter holiday next year or the year after next, and spending more hours dealing with legislation, that will have to be the way. My suspicion is that more of the legislation will end up on the Floor of the House than people expect. Much will be small and much will be technical, but I am entirely sure that when there are principles and when there are concerns, the Government will want to air them, because that is how our Parliament works, and I think that it does so with the best of intentions.
If there is a rush, it is because the article 50 process involves a timetable, and that timetable was determined by Tony Blair when he negotiated the Lisbon treaty. Incidentally, according to the 2005 Labour party manifesto, the treaty was to be put to the people in a referendum, which was reneged on by the then Government. At the moment we are trying to deal with legislation that was pushed through by Tony Blair, in order to carry out the will of the British people.
We have heard today about an unprecedented “biggest power grab in 100 years”. Well, I am old enough to have been in the House when the Blair Government introduced programming. I agree that it has pluses and minuses, but what it did was to transfer power from the Opposition to the Government, and that has been a very substantial change over the past 20 years. The reality is that the Government are doing their best to secure a sensible, measured movement out of the EU, and to allow future Governments, at their leisure, to legislate for change, if that is what they wish to do. There is going to be great opportunity for this House, although probably not in this Parliament. In the future, it will be able to deal with a much wider range of policy.
I do not hold that there is anything evil or pernicious about what the Government are trying to do. They have been given a problem by the British people, and they have to try and solve it. Members might well improve the procedure for achieving that over the eight days in Committee, but the Government’s objectives are to carry out the will of the people and ensure that we have a steady, careful transition so that, the day after we leave the EU, people do not notice any difference, and Members of Parliament will be the people who make a difference.
Richard Burden (Birmingham, Northfield) (Lab)
The majority of my constituents who voted in the referendum voted to leave the European Union. Out of respect for them, I also voted to trigger article 50 earlier this year, but neither the people of Birmingham, Northfield, nor those anywhere else in this country, were ever asked about, or voted for, the kind of ministerial power grab that the contents of the Bill represent.
On Thursday, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), together with the right hon. and learned Member for Beaconsfield (Mr Grieve) and many others, forensically and cogently outlined why the powers Ministers are seeking to take, particularly in clauses 7, 9 and 17, are so widely drawn that they have left what the right hon. and learned Gentleman memorably described as “an astonishing monstrosity” of a Bill. Like them, I do not believe it is acceptable for Ministers to have the power to sweep away protections for employees and the environment or laws to guarantee equality by statutory instrument, or, indeed, for them to vary the enforcement mechanisms for those laws by statutory instrument, simply by asserting that they are doing so to rectify what they perceive to be deficiencies not only in EU laws that are transposed into UK law, but even in UK laws themselves that they say are somehow linked to the EU. This Bill goes so far as to give Ministers the power to amend primary legislation by statutory instrument, and even the power to extend the provisions of the very measure—this Bill—that gives them that power in the first place. Professor Mark Elliott, professor of public law at the University of Cambridge, has rightly described this as delegated legislation on stilts, so I will be supporting the reasoned amendment that declines to give this Bill a Second Reading.
Of course, we need legislation to ensure that EU rights and protections are incorporated into UK law so that we avoid gaps being opened up in the spectrum of rules and regulations at the point of Brexit. There is consensus in the House about that, so why have Ministers brought forward a Bill that undermines rather than builds on that? It is not as if they have not had time to do this properly. When they published their White Paper back in March, we warned them then against using the Bill that would follow to unreasonably increase the powers of Ministers so that they could sidestep full scrutiny of their proposals by elected MPs. We warned them again at the election—our manifesto commitment to replace what at that time was being called the great repeal Bill with an EU rights and protections Bill was precisely that warning. In the past months, many bodies, ranging from the Hansard Society to the Equalities and Human Rights Commission and the Local Government Association, have warned the Government about the dangers of the Bill in its current form. The Women and Equalities Committee and many others have warned about problems with the Bill.
On Thursday, in answer to an intervention from the right hon. Member for Broxtowe (Anna Soubry), the Brexit Secretary hinted that he was prepared to talk about ideas for a triage system to give MPs and peers some kind of say over the limits of where and how delegated legislation should be used, perhaps taking up some of the ideas of the House of Lords Constitution Committee. I welcome that, but I have to say that Ministers’ track record since March underlines that what we need from them is more than generalised offers to talk. We need some demonstration that they are prepared to act on what they are being told, but so far there is no indication at all that that is going to happen. Rather, the thrust of the Brexit Secretary’s argument on Thursday was that there is really nothing to worry about in this Bill and that Ministers should be trusted to use the powers they are given only sparingly, and not for matters for which they are not appropriate. I am afraid that that just is not good enough. If the Government want to reassure us that the powers conferred by the Bill will not be used to do something that those powers expressly permit, it is legitimate for us to ask: why grant those powers in first place unless we can also have a say in practice over the circumstances in which they can be used? This Bill does not give Parliament that say. Until it does, I cannot support it.
Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)
In an excellent speech on Thursday, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) referred to the fact that we are sent here on the wings of ballot papers sent in by our constituents. That is a precious right, and I agree with her that it is one that we should observe and uphold. I was sent here with a very clear message from my constituents, who on 23 June 2016 voted decisively to leave the European Union. They did so, contrary to what the hon. Member for Brighton, Pavilion (Caroline Lucas) says, in full knowledge of what that entailed: self-government over federalism, democracy over bureaucracy, and economic liberalism over protectionism. It is important to note, of course, that the third of my voters who voted to remain have accepted the result, and now simply wish for our departure from the EU to be as smooth and orderly as possible. That is why we need this Bill. Indeed, it is not an exaggeration to say that we cannot have that without this Bill.
So let us be clear about the Bill’s function. This is not a Bill about whether we stay in or leave the EU; that decision was taken by our bosses, the British people, last year. Likewise, it is not a Bill about the substance of the withdrawal agreement; that is a matter for ongoing negotiation between Ministers and Brussels. The primary purpose of the Bill is simply to provide the legal continuity and certainty on exit day that I think all of us want.
To be clear, we have to do this. The House of Commons Library states that once the European Communities Act is repealed on exit day, without the legislative measures proposed in this Bill,
“huge holes would open up within the statute book”.
The Opposition talk a good game about Henry VIII and power grabs, but the Secretary of State was crystal clear on Thursday that the Bill will not be used to make material changes, and he made welcome commitments that he will consider sensible suggestions at Committee stage, and that is the point—this will happen in Committee.
If we vote down this Bill this evening, as Opposition Members want to do, we will be torpedoing the whole principle of the Bill, not the substance of the individual suggestions in it. We will be preventing the very chance of making the amendments that people want to see. It is hard to avoid the feeling that for some Members this is less about parliamentary scrutiny and more about parliamentary sophistry—that is to say, frustrating our best chance of making a success of Brexit. That is something I passionately believe in, although I accept some do not. The point is that we are all in this together, so we need to make this work. I put it to Members who represent seats that voted heavily to leave that they should reflect, as I have, on what message we would send out if we set about obfuscating their clearly expressed will in any way.
The right hon. Member for Don Valley (Caroline Flint) made a powerful speech earlier, joining those given by the hon. Members for Blackley and Broughton (Graham Stringer) and for Vauxhall (Kate Hoey) and the right hon. Member for Birkenhead (Frank Field). They understand the nature of the mandate we have been given. This is an extraordinary, once-in-a-generation moment, and I think it crosses party lines. People on Teesside, every single constituency of which voted to leave the EU, will be astonished that I am the only Member from that region who is going to be voting tonight for what they asked for.
I want to conclude by re-emphasising the calamitous consequences of our exiting the EU without the necessary legal provisions in place. Without this Bill, we will wake on the morning of exit day to find that thousands of our laws have changed or been rendered inoperative. The fallout from that scenario will make “cliff edge” sound euphemistic. With that in mind, voting against the Bill tonight will be interpreted by many as a vote to punish the British people for having had the audacity to vote for Brexit, for that is exactly what it will do.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
I am grateful for the chance to contribute to this debate. I look forward to re-joining the Exiting the European Union Committee, whose important work will finally recommence this week.
I will vote tonight for Labour’s reasoned amendment and against the Second Reading of the Bill, not to frustrate Brexit, but because I believe that Parliament and the country must not be side-lined in how we move forward. The Bill has clearly been written without thought to its implications. As it stands, it sets a precedent that our democracy, or any other, should not allow. Ministers would be able to amend primary legislation—the Bill and other Acts—without needing a debate or vote in this House. Ministers could remove rights and protections through secondary legislation without any meaningful or guaranteed parliamentary scrutiny.
Many excellent points on the scope, scrutiny, transparency and accountability of the powers in the Bill have already been made, especially by my right hon. Friend the Member for Derby South (Margaret Beckett). I want to focus the detail of my remarks on one specific issue of concern, on which I would be grateful for the Minister’s response.
Once upon a time, before the general election, there was a lot of stirring rhetoric from the Prime Minister about how no deal would be better than a bad deal. These days, we hear less public talk of no deal, but the Bill nurses one hangover from when the Prime Minister could still pretend she had a mandate for her vision of what Brexit means. We do not have to look very far to find it. It is in clause 1, which states:
“The European Communities Act 1972 is repealed on exit day.”
“Exit day” is defined as
“such day as a Minister of the Crown may by regulations appoint”.
Now stand back. What clause 1 proposes is that any Minister can decide when our membership of the EU ends.
On any day, if the Prime Minister or Foreign Secretary decided, the Executive could withdraw from talks and decide to make hard Brexit a reality by repealing the European Communities Act, without a proper debate and without a full vote of this House. Clause 1 appears to put perhaps the most important power in the Bill—the power to repeal the European Communities Act—entirely into the hands of any Minister at a time of their choosing and whether or not there is continuity of our laws at that time.
Exit day is not even defined as being, at the earliest, 29 March 2019. There appears to be no parliamentary supervision over that power. It would appear that Parliament does not need to approve the regulations. Parliament does not even get to see them in advance. Hon. Members will have their own views about the wisdom of Ministers having that power. For my own part, I find it hard to see how giving an unfettered power to any Minister—especially a Conservative Minister—is what Parliament taking back control looks like.
There is no need for Parliament to be cut out of that decision. If our talks with the EU produce a deal, it will need to be approved by the other member states and the European Parliament before the cut-off date of March 2019. So there will be ample time for Parliament to choose to accept it, and consequently for the UK to see the repeal of the 1972 Act on what most assume will be exit day—29 March 2019. But if our talks with the EU break down, it must be for Parliament and not Ministers to determine our response. Parliament may decide to repeal the 1972 Act anyway, or it may say that no deal will have calamitous consequences—crashing over the cliff is a long way from the sunlit uplands promised to the electorate.
Either way, what is important is that it is Parliament, not a Minister, who chooses how to respond. That is why Labour’s manifesto promised voters a meaningful choice. The question of what action we should take if talks break down is for Parliament to answer. The power for Ministers to exit with no deal should not be in the Bill. I will vote against a Bill containing this unfettered clause 1, and I hope for some words of reassurance from the Government on that today.
The vote tonight is not about whether we leave the European Union, it is about how we do so. For want of a better phrase, the Bill is little short of a dog’s Brexit. Parliament and the country deserve better.
Dr Sarah Wollaston (Totnes) (Con)
Without the Bill we cannot respect the will of the British people, as expressed in the referendum, and repeal the European Communities Act 1972. Without the Bill, as many Members have pointed out, we will see legal chaos. Given the sheer volume and complexity of the EU law that will have to be converted into UK law, I accept that the Government will need relatively wide delegated powers to amend legislation, but there is a distinction between necessary amendments as a consequence of our leaving the EU, many of which will be technical and minor, and those that implement entirely new policies.
The delegated powers in the Bill will touch every aspect of our lives, as many colleagues have said—their use could be unprecedented in scale, scope and constitutional significance—so I am glad to hear that Ministers are in listening mode. I will support the Bill tonight in the expectation that it will be amended in Committee and that there will be support for reforming the way delegated legislation is handled, so that Parliament, rather than the Government, can decide the appropriate level of scrutiny. Without that, we simply will not be able to bring control back to Parliament.
It may be useful to those who are following the debate from outside this place if I explain how delegated legislation works and why it is important that we amend it. I was first introduced to Delegated Legislation Committees when I was appointed to one dealing with draft double taxation relief and international tax enforcement orders. I thought there must have been a horrible mistake, so I sent a note to the Whip to ask about my duties. I received the following three instructions: “Turn up on time, say nothing and vote with the Government.”
People might argue that no one died as a result of my ignorance of international law on double taxation relief in Oman and Singapore, but what makes the system so absurd is that the very next Committee due to sit was a Delegated Legislation Committee examining the draft Medical Profession (Responsible Officers) Regulations 2010. It might be argued that, as someone who had just come to the House having been teaching junior doctors and medical students and having been an examiner for the Royal College of General Practitioners with an interest in doctors who were failing, I was better placed to be on the second Committee. It seems to me that there is an expectation that Members should not have any expertise at all. I think the general public would find that absolutely extraordinary; they expect Members to be able genuinely to scrutinise legislation.
There are many other reasons why the procedures should change. It is a great concern to people outside this place that many statutory instruments are subject to the negative procedure rather than the affirmative procedure and do not get any scrutiny at all—not even the current defective scrutiny. The power to change that does not necessarily need to come from legislation; we could use the Standing Orders. I commend the Hansard Society for the excellent work it did in advance of the Bill to set out how the procedures could be amended. Even though it is in our power as a House to put in place Standing Orders, for example to set up a Delegated Legislation Committee with the powers of sift and scrutiny that we have discussed today, it would help if Ministers indicated that they are in listening mode about that, too, and that they would support it happening over time.
I genuinely feel that the Government do not want to obstruct sensible debate. All Members from across the House should work with Ministers to put in place something that genuinely works. We know that delegated legislation needs reform even without this Bill, so let use this as an opportunity. As we have heard, up to a thousand statutory instruments will be coming before the House, and we need the House to decide whether the procedure will be negative or affirmative. We need reform so that we can genuinely develop expertise along the lines suggested by the Hansard Society and so that MPs with a genuine interest scrutinise the proposals.
The point is that a delegated legislation Select Committee could have the power to send a statutory instrument to a Committee of the whole House—not just a small Delegated Legislation Committee in a Committee Room, but with all of us here, similar to what we are doing today. It could also have the power to suggest sensible amendments that the Government would have to take away and consider. I have said that I will support the Government tonight, but I do so only in the expectation that they will support sensible amendments.
Wera Hobhouse (Bath) (LD)
“Democracy” and “the will of the people” are terms often used and—dare I say it—abused in connection with leaving the European Union. I have been listening to this debate for many hours now, and I am puzzled by the arguments of those who support the Bill’s progress. As has already been said this afternoon, we are here to debate not whether we leave the EU but how we do it. Over the past two days of debate, it has been eloquently proven by Members from both sides of the House that what is in front of us is deeply flawed, because it threatens to write into law a substantial loss of our parliamentary democracy and set an alarming precedent. It is therefore frustrating to be accused of undermining the will of the people if I do not support the Bill’s progress. I will not support the Bill, because it threatens a fundamental principle of British democracy—the supremacy of Parliament and the division of powers—and gives sweeping powers to Minsters and bureaucrats. The right to make laws in this country was given to Parliament after many hard-fought battles.
Wera Hobhouse
Will the hon. Gentleman hear me out?
The supremacy of Parliament is a proud tradition that all of us should defend. I find it perplexing that, for example, the hon. Members for North East Somerset (Mr Rees-Mogg) and for Blackley and Broughton (Graham Stringer), both of whom I know to be thinking people, are so eager to see us leave the EU that they forget everything else in its path. Democracy matters, and whoever tries to suspend democracy to enact the will of the people should think again.
The will of the people is of course a pretty mixed bag and is not fixed forever. On 23 June last year, almost 70% of my constituents voted to remain in the EU. In June this year, I was elected on the basis of my opposition to the Government’s Brexit line. That was the will of the people in my constituency at that point. True to form, Bath had one of the highest voter turnouts, and active engagement in Bath is not limited to election time; it is evident every day. Protest groups, demonstrations and lively debates are testament to how much people in Bath care about how our country is run. Another principle of democracy that they want to see practised is that I can speak on their behalf about their concerns about when and how we leave the EU without being labelled as a remoaner, a reverser, unpatriotic or undemocratic. Democracy is about the right to debate freely and voice an opinion without being labelled or bullied. If we truly want to achieve the best for our country, we need to be able to discuss all outcomes freely, including that people—leavers or remainers—can change their mind.
The Bill adds another level of madness to the Brexit process, betraying not only those who voted remain, but those who chose to leave. One of the leave campaign’s strongest arguments was about taking back control here in Westminster, but instead of giving control back to this Parliament, which the leave campaign championed, the Bill is a power grab by Ministers. One of my constituents said to me:
“When people voted to leave the European Union, they didn’t vote to swap backroom deals in Brussels for more of the same in Whitehall. They voted for Parliament and the British people to have more of a say.”
As the MP for Bath, I will fight this attack on our democracy. I will not sit idly by as this Government try to erode our rights and change our laws behind closed doors. How can anybody support this Bill? My only conclusion is that those who support it want their version of Brexit at any cost, including democracy. Come on, let us stand up for democracy and stop this flawed Bill in its tracks. I dare say that the will of the people will be right behind us.
Bill Wiggin (North Herefordshire) (Con)
I have been in the House since 2001 and have, I dare say, manufactured a fair amount of indignation about the legislation of previous Governments, but things are different today. I respect the Opposition’s arguments—they are absolutely right to raise them, and their concerns are valid and should be considered—but we are in the middle of a negotiation and my constituents constantly ask me, “What is going to happen?” We, as a country, are being pitted against our former partners in a negotiation and if it goes wrong, that will cost us billions of pounds and deny us access to markets. This is not the time for us to be dancing on the head of a pin about the details of delegated legislation. How many delegated legislation Committees have hon. Members sat through? Members will know about the countless rubber-stamping of EU directives. I have seen it myself, and the worst one was the directive about alternative investments. The impact assessment stated that it had a bill of £8 billion, but neither Front-Bench team seemed to think it at all important. Delegated legislation has been going wrong for decades. I will accept that the Bill may not be perfect, but it is right that we pull together at a moment like this—mid-negotiation—because there will be chances to put this Bill right in Committee.
I rather agreed with the hon. Member for Bath (Wera Hobhouse) when she said that our constituents do not want to swap faceless bureaucrats in Europe for faceless bureaucrats in Whitehall, but they are not doing that; our bureaucrats have faces. We know who they are, and they are accountable to us.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
As a former editor, may I suggest that the Brexit Secretary sits down over the recess in a dark or light room with my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke) to produce something that will go through the House more quickly and with more unity than this Bill?
Bill Wiggin
I rather hope that the Brexit Secretary will concentrate on negotiating our departure rather than on sitting in darkened rooms, or perhaps that is what he is doing—who knows?
Returning to the main thrust of what is going on, we need a unified, sensible piece of legislation, and we must support the Government, get the legislation through and then sort out our differences. Support for the sake of it is wrong, but it is absolutely the right thing at this particular time and at this particular stage in the legislation. It is what our constituents want and expect.
Catherine West (Hornsey and Wood Green) (Lab)
The hon. Gentleman makes light of the rights of each of us, of our constituents and, indeed, of EU nationals when he says that we are dancing on the head of a pin if we do not allow the legislation to go through tonight.
Bill Wiggin
No, I do not think so. Delegated legislation is always difficult. There are so many statutory instruments to get through, but that has been true ever since I have been here. We have had countless pieces of rubber-stamping. However, I have taken great comfort from the Front-Bench team saying that there is a sunset clause and that the spirit of the law will not be changed. I appeal to the Labour voters in North Herefordshire. They were very few in the past, but their number has grown recently. They did not manage to mention the Leader of the Opposition at any stage during the election, but they are decent, patriotic people and they want to see our country winning, not bickering among ourselves. Please support this critical piece of legislation, but if hon. Members cannot support it, please abstain.
Heidi Alexander (Lewisham East) (Lab)
I will be voting against the Bill tonight because it is a thoroughly bad piece of legislation. It is unprecedented in the powers it gives to Ministers, it fails to guarantee all the rights and protections currently enjoyed by individuals and businesses in the UK, and it paves the way for a Minister to sit behind a desk in Whitehall and take us out of the single market with the stroke of a pen.
On the most important issue facing this country—our continued membership of the single market—the Bill could mean no direct vote in Parliament, no say for MPs and no voice for our constituents. When we talk about a power grab, it does not get much bigger than that.
I say this to Ministers: should the Bill pass its Second Reading tonight, I will table amendments to ensure that it is Parliament, not Ministers, that determines whether we come out of the European economic area. As currently drafted, the Bill repeals the European Economic Area Act 1993, the law that incorporates the EEA agreement into British law.
The European economic area, as all hon. Members will know, contains the countries of the EU plus Norway, Iceland and Liechtenstein. The EEA is a way to stay in the single market while being outside the EU; it is a way to maintain ease of trade while being outside the jurisdiction of the ECJ. I may prefer to stay in the single market by remaining in the EU, but that horse has bolted. I am a realist, and I recognise the result of the referendum, but I will not hand over all the cards to Ministers to determine how we leave.
The repeal of the EEA Act in part 2 of schedule 8 and the provisions set out in clause 8 are likely to be used by Ministers to claim they have parliamentary authority to notify other contracting parties to the EEA agreement of the UK’s intention to leave the single market. Ministers could claim the Bill authorises them to make a written withdrawal notification, in line with article 127 of the EEA agreement, despite that not being in the Bill. That is not good enough. Just as we had an Act of Parliament to trigger article 50 of the Lisbon treaty, we should have an Act of Parliament to trigger article 127 of the EEA agreement.
The EU and the EEA are two different things governed by two different agreements. Surely the withdrawal of the UK from an international agreement, not least one that could hold the key to our continued membership of the single market, should be a decision for every Member of this House. Irrespective of whether we believe the country should be out of the single market, in it for a transitional period or in it indefinitely, how can that not be a decision for this Parliament? It was not decided in the referendum last year. The words “single market” were not on the ballot paper. Anyone who claims that they were is simply interpreting the referendum’s outcome.
Let us not forget that when the Prime Minister put her extreme Brexit plan to the electorate this year, she could not win a majority. The idea that we allow this Bill to fudge it, and that we leave it to Ministers to decide our fate without recourse to Parliament, would be a democratic disgrace of the highest order.
Our continued membership of the single market, along with our ability to stay in the European customs union, is the most important issue for our country. It is about jobs and trade, but it is also about tackling austerity and investing in our schools and hospitals. If we crash the economy on the altar of concerns about immigration and sovereignty, our public finances will be hit and the cuts of the last seven years will pale into insignificance.
I understand Ministers’ desire to create a functioning statute book, but I want a functioning economy and a functioning democracy as well. I am not prepared to cede major decisions on our country’s future to the Prime Minister, her three musketeers and whoever comes after them. I am not prepared to let a hard-line Tory obsession with immigration determine our future prosperity. And I am definitely not prepared to legislate to exclude myself and, for that matter, every other Member of the House from having our say on behalf of our constituents.
Derek Thomas (St Ives) (Con)
I welcome the Second Reading of this Bill, and I am grateful for the opportunity to speak in this debate and to follow the hon. Member for Lewisham East (Heidi Alexander).
My constituency voted decisively to leave the European Union, and I am determined that the process of leaving the EU gives the people of west Cornwall and the Isles of Scilly the certainty, continuity and control that this Bill accomplishes. When they voted to leave the EU, the good people of west Cornwall did not expect this House to implement their decision chaotically. Instead, they voted for a smooth exit from the EU, with the ultimate goal being that Parliament would take back control of UK laws. The Bill is an important and necessary step towards that goal and will ensure that the statute book does not contain huge gaps after Brexit.
Perhaps reflecting the momentousness of the Bill, I have had a great deal of correspondence from concerned constituents who are anxious that it might side-line democracy. I understand why people are concerned. People voted to take back control, which, to be faithful to democracy, means bringing back control to a sovereign Parliament, not to Government in Whitehall.
However, there is a need to strike the right balance. People’s concerns about the use of so-called Henry VIII powers are well articulated and sincere but, given the breadth and volume of European legislation that will have to be transferred into British law, I do not see any other practical solution. It is vital that businesses in my constituency, most of which are small, local enterprises, have certainty on the Brexit process and beyond. I hope the Bill will give them that certainty and foster a smooth transition back to UK control. It is important that we prevent a cliff-edge Brexit by providing continuity in our laws after exit day.
I agree that the Bill must not simply hand Ministers and their civil servants the freedom to do as they please with future legislation and reform of existing legislation. I recognise that the intent of the Bill is to make a success of Brexit, but there is a need for proper scrutiny. In their defence, Ministers have made it clear that powers taken by Government through the Bill are time-limited. I therefore look forward to the opportunity in Committee for Members on both sides of the House, including me, to hold Ministers to account.
I welcome that the Bill will, in time, restore to Parliament full responsibility for UK legislation for the first time in several decades, which is something that my constituents and the nation were in favour of when they voted to leave the EU. In the furore surrounding the unusual powers being taken by Ministers through this Bill, however, scant attention has been paid to one of its key positive objectives: greater devolution. I hope that can be swiftly rectified, as it is likely to be one of the most valuable aspects of our leaving the EU to my constituents and the people of Cornwall.
If the devolution benefits of Brexit are to be felt in my constituency, devolution needs to reach beyond just the borders of the devolved nations of Scotland, Wales and Northern Ireland. We must seize the opportunity to devolve power ever closer to the people of the UK. Greater devolution would help to build on the success of existing devolution arrangements, such as the 2015 Cornwall devolution deal. It will enable us, as a nation, to tackle issues better locally. Cornwall should no longer have to accept its low-wage economy. Our low wages harm people’s ability to access the housing they need; encourage an exodus of young people, as they seek well-paid jobs elsewhere; reduce the money that people have to spend in our town centres; and hamper efforts to provide well-resourced community facilities and services.
Leading on from that, does the Minister welcome that local authorities are rising to the challenge following the referendum result? Local authorities want to address these problems. Cornwall Council, for example, set up the Cornwall futures group after the referendum to look at the opportunities and benefits our exit will bring to Cornwall and Scilly specifically. That work includes considering areas of legislation that the council would like to see passported down to Cornwall and tailored to meet local demographic and geographic demands, such as the ability to strengthen water quality on our beaches, fishing policy for our unique mixed fishery in the south-west and other environmental legislation. Getting back this control is perhaps why so many Cornish people voted to leave the EU last year.
In summary, this Bill is the only game in town if we want to achieve a smooth Brexit in March 2019 and ensure that the electorate and businesses have confidence in Great Britain’s future. However, I would like to hear how and when Ministers intend to ensure we have a full parliamentary process when deciding future UK laws, and what aspirations Ministers have on devolving further powers to regions and counties such as Cornwall and the Isles of Scilly. I know my constituents would like to know what kind of legislation will be decided closer to home.
Dr Roberta Blackman-Woods (City of Durham) (Lab)
I, too, will vote against the Bill this evening, and I bring to bear two aspects of my experience in this House on my assessment of the Bill as being profoundly undemocratic and something that this House should reject. In recent years, I have served on a number of Bill Committees, and every Bill has contained centralising measures that take powers away from Parliament, or from a range of agencies, and give them to the Secretary of State. This Government, like the one before, are profoundly centralising, and Parliament should be very worried about the measures in the Bill. I also had the great misfortune to serve on the Joint Committee on Statutory Instruments for five years, so I know how outrageous it is that the Government are using statutory instruments in the way they are in the Bill. The negative procedure, used a great deal in this legislation, is particularly inappropriate in terms of giving Parliament the oversight it needs over how we Brexit.
Not only does the Bill give far-reaching powers to Ministers without meaningful parliamentary scrutiny, but it allows for rights and protections to be reduced or removed through secondary legislation without any meaningful scrutiny; it fails to provide certainty that rights and protections will be enforced as effectively in the future; it provides no mechanism for ensuring that the UK does not lag behind the EU in workplace protections; and, crucially, it prevents the UK from implementing strong transitional arrangements on the same basic terms that we currently enjoy—arrangements that include remaining in the customs union and in the single market. I will say more about that in a moment or two.
From equality laws protecting women, minorities and disabled people from discrimination to workers’ rights and key health and safety provisions, the rights secured through British EU membership have greatly benefited everyone in our country. We should also not forget the proactive role of the European Court of Justice in improving workers’ rights in Europe, on matters ranging from decisions on equal pay for equal work to the pension rights of part-time workers. Equally, the EU’s environmental protections, based on the principles of prevention and precaution, such as the incredibly successful bathing water directive and the common water framework, have had an important positive influence on our environment. They need to be protected by this House and this Parliament, and not left to the whims of Ministers.
It is also important that this House is able to have a say on whether we adopt transitional arrangements and on what they are. That is particularly important in terms of the customs union and the single market, which are vital to my constituency in the north-east. Some 60% of our exports are sold to the EU, and the north-east is the only region in England to export more goods and services than it imports. Trade with the EU has delivered more than 100,000 jobs in the region—that is approximately 8.4% of the workforce. Research by the TUC has found that there are 2,500 workers from EU countries in health and adult social care in the north-east alone, so we have great concerns about what is going to happen to that workforce post-Brexit.
It is also crucial for us to maintain continuity on services sector trade, as half of north-east services exports are traded with the EU. It is therefore not surprising that two thirds of north-east businesses wish to see a transitional period lasting for three years or more, but this is not addressed in any way in the Bill. Sarah Glendinning, the CBI’s regional director in the north-east, has said:
“Europe remains the UK’s biggest export market by some distance, so it’s little wonder that businesses here in the North East see maintaining access to the market of our nearest neighbours as a priority.”
Perhaps Ministers would like to say something this evening about how they will address those concerns.
The north-east also receives more EU funding per capita than most other regions; we receive more than double the national average, through the EU structural and investment funds, the European social fund and the JEREMIE—Joint European Resources for Micro to Medium Enterprises—programme, to give just a few examples. I also want to hear from Ministers what they will do, through this Bill, to ensure that the money that the north-east gets from the EU will be maintained or increased. We are debating a really important matter for the north-east; Ministers must address the concerns they are hearing from Opposition Members and bring in proper measures that are truly democratic.
Richard Drax (South Dorset) (Con)
This is the second day on which I have sat listening to many good speeches on this topic, but I cannot help but feel that during some of them, irony sits heavily in the air; we have heard about “scrutiny”, “democracy”, “democracy of the people” and “functioning democracy”, but where has democracy been for the past 44 years? Where has it gone over those 44 years? It has gone into the powers of a bunch of unelected Commissioners who tell us what to do.
Ian Paisley (North Antrim) (DUP)
Does the hon. Gentleman agree that none of those who are criticising the points he is making have brought forward, in the years I have been in this House, a reform of the process they now so wish to cling to?
Richard Drax
I agree with my hon. Friend, and I will come to that very point.
Richard Drax
I will not give way again, because many other Members wish to speak. However, I shall address that point later, because I served on the European Scrutiny Committee in the last Parliament.
From listening to the speeches, one would think that this country, Great Britain, was incapable of passing laws. What on earth is wrong with this great place, which we are selected to represent—our country? We are talking about one of the biggest honours: becoming an MP and representing our constituents. We used to make all the rules and regulations that our constituents lived under. Hon. Members may recall that we joined the EU for free trade, which everyone said was a jolly good idea—and it was. Unfortunately, the bureaucrats have taken over the running of that good idea, and if we can go back to that idea by leaving the EU, as I hope we can, I believe our constituents will be forever grateful.
This Bill is not a power grab, as the Opposition claim. The way they are going to vote is a smokescreen; it is a politically cynical move to destabilise this Government—that is all it is. It is an opportunity for the Leader of the Opposition, God forbid, to become Prime Minister of this country. What we are doing here is repatriating thousands of regulations into our jurisdiction, thousands of which have been imposed on us over the past 40 years. We can review them; that is our job—we review legislation. If we do not like it, we will get rid of it. If we have a majority, we will vote it out. If we like it, we will keep it. If we are not sure, we will amend it. What might be right for a European country—for the French or the Germans—might not be right for us.
Because of the sheer number of regulations, some will have to be delegated. Everyone is making a noise about delegated legislation, but both main parties have used delegated legislation for years—it is part of how this place works. Some Government Members have suggested some sort of triage process to assess what should be dealt with through delegated legislation and what should be taken on the Floor of the House. If I recall correctly, my right hon. Friend the Secretary of State listened to them and said that he would think about that. I am sure that those who want there to be a decision-making process for what should and should not be delegated will have a say in Committee.
The hon. Member for North Antrim (Ian Paisley) made a point about the silence that has reigned for so many years. I served on the European Scrutiny Committee under the excellent chairmanship of my hon. Friend the Member for Stone (Sir William Cash), who is sitting just in front of me. For years—for many more years than me and probably most people in this House—he has scrutinised EU legislation. In the short time for which I served on the Committee, we tried to get important issues—not least the future of our ports—debated on the Floor of the House, so that we could all listen to the sense, or lack thereof, of EU legislation and decide whether what was appropriate for Europe was appropriate for us. Those debates never happened.
Richard Drax
As my hon. Friend says, even if those debates had happened, the legislation could not have been changed. Where were all these loud voices? Where were you all over the past 40 years? Why did you not question what was being imposed on our country and our constituents? Where were you?
Richard Drax
No, I will not give way—absolutely not! I do not have time and I am enjoying myself. I am representing my constituents and my country. I am speaking up, at last, for Great Britain, and not for a bureaucracy that is going horribly wrong. The great thing is that when the Bill returns to the House, we can scrutinise it—we can do our job. That is what we are here for.
The Scottish National party wants independence and to rejoin the EU. The EU would nail Scotland to the floor if ever it got the so-called independence that the SNP desires. SNP Members would rue the day, as they headed to economic ruin, trapped in the euro—if indeed the EU let Scotland have it.
The Bill is good for our country. Ministers have not got it all right; I would be the first to concede that, and I am sure they would concede it, too. It can be debated and changed in Committee—of that I am certain—but a vote against the Bill tonight is a cynical ploy that our constituents, who sent us to the House, will not accept. I shall vote with the Government.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight.
Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already common”. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill.
On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create—guess what?—yet more Henry VIII powers!
Sir Oliver Letwin
Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)—namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?
Stuart C. McDonald
I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.
Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.
We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.
With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.
Stephen Kerr
I shall try again with the question I asked earlier. The hon. Gentleman talks about power grabs and the trashing of the devolution settlement, but can he tell me one power that the UK Government intend to grab back from Holyrood?
Stuart C. McDonald
Had the hon. Gentleman listened to my hon. Friend the Member for North East Fife (Stephen Gethins) earlier, he would have heard him mention agriculture, the environment and fishing. If he bears with me, I shall come to that point in just a moment.
The Länder and the individual states of the United States are lucky that they are protected by a proper constitution; it seems that all our devolved nations are protected by is the Government’s mood and political pressure. It is a salient reminder that power devolved is power retained and of just how fragile the devolution settlement is.
On the point made by the hon. Member for Stirling (Stephen Kerr), can we imagine the response if the Bill sought to do to this Parliament what it would do to the devolved legislatures? If the Bill’s purpose was to take back control, but then to prevent Parliament from changing retained EU law, it would have been laughed at and considered utterly unacceptable, but that is exactly what it will do to the devolved legislatures. It is completely unacceptable for the exact same reasons. We have heard some patronising arguments from Government Members, one of whom essentially argued that the UK Government need to take control of the powers for now to protect citizens in the devolved countries from their democratically elected Governments. We are more than capable of handling powers; we have done so since devolution, and we will continue to do so after Brexit.
If anything good has come of the Bill, it is its highlighting of the significant failings in the House’s procedures for the scrutiny of the ever-increasing number of Executive powers to which successive Governments have helped themselves. It also highlights the utterly centralised nature of the British constitution, which is as far away from a mature federal model as it could ever be. There are almost no proper constraints to rein in Executive power, or proper legal safeguards for important rights. The idea that the Bill is part of a restoration of Parliamentary sovereignty is nonsense; it will simply mean that parliamentary sovereignty and, more significantly, Executive power are more unfettered than ever.
Perhaps membership of the EU, and the protections that that has provided through the charter of fundamental rights and other provisions, has led to complacency about the dangers of untrammelled parliamentary sovereignty, and the problems of the elective dictatorship once identified by Lord Hailsham. Now that the EU’s safety nets are being removed, all of us who believe in constitutionalism need to look again at where the UK goes from here. This Bill is certainly not the answer, which is why I will vote against Second Reading tonight.
Richard Graham (Gloucester) (Con)
Today and last Thursday, a number of speakers on both sides of the House stated that this Bill is not about whether we leave the EU, but about how. That should be something on which we can all agree, although today we have heard speeches from those who clearly take a different position. For example, the right hon. Member for Tottenham (Mr Lammy) made it absolutely clear that he was fighting against leaving the EU at all. The hon. Member for Lewisham East (Heidi Alexander) made an equally passionate speech, saying that she was voting to stay in the European economic area, and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) started his speech by stating that he would not vote for the Bill this evening, and then looked for reasons as to why he would not do so, which is broadly the position of almost all his colleagues.
If we look at the Bill objectively, surely everybody can agree that we are where we are, and that we must have arrangements in place that suit every organisation in this country, including the prospect of knowing what the law of the land is at the end of March 2019.
Richard Graham
I am tempted to give way, but I will not because are so many other people wish to speak. Will the hon. Lady forgive me?
Richard Graham
It is all about what the process will be. Interestingly, some of us have had the chance to look at a House of Lords report, which recommended some elements that this Bill should include. The report made it absolutely clear that delegated powers will be necessary in some cases, because the sheer volume of legislation needed—some 12,000 pieces of legislation—means that unless we use those powers effectively, the job will simply not be done in time.
The House of Lords Constitution Committee, which is not known to be a warm friend of this Government, made two specific recommendations. It recommended that
“a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only: so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and so far as necessary to implement the result of the UK’s negotiations with the EU.”
When the Secretary of State introduced the Bill on Thursday, he made it absolutely clear that that was broadly what the Government hoped to achieve. He went further and specified what the legislation would not be about. He made it clear that the powers in clause 9 would be for only two years and that they would make “technical and legal corrections” to deficiencies in the law. He also made it clear that Ministers will not have the power to make major policy changes and that changes will still be subject to parliamentary scrutiny and oversight.
Several Members, mostly on the Opposition Benches, have questioned the definition of significant, what restraint there will be on the Government when deciding what is and what is not important, and what constitute technical and legal corrections. Therefore, there has been a debate, with Members on both sides of the House offering suggestions as to how things can be improved. The Secretary of State has said that he is in listening mode and that he is happy to talk about mechanisms for making sure that the process is fully democratic and open. All that is encouraging and in tune with what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) referred to on Thursday during his important contribution to the debate. In particular, he said that it is important
“to have an established parliamentary system of scrutiny to ensure that the different types of statutory instruments that will be needed are correctly farmed out. I have no doubt that my right hon. Friend”—
the Secretary of State—
“is right that the vast majority of them will be technical and of very little account, but some will be extremely important and will need to be taken on the Floor of the House. We need to have a system in place to do that.”—[Official Report, 7 September 2017; Vol. 628, c. 407.]
My right hon. and learned Friend did not recommend a specific system, but it seems relevant to suggest here that we already have what is, effectively, a body for precisely this task: the Joint Committee on Statutory Instruments. We also have a different model, or possibly an additional one. I am talking about what the Secretary of State for Work and Pensions is obliged to go through as a statutory requirement: the Social Security Advisory Committee. Some of us believe that we could use a combination of both those bodies. We could use an advisory committee to provide the technical analysis of proposed changes, and the Joint Committee to go through them and approve or disapprove the recommendations.
Richard Graham
I am so sorry, but I will not give way.
That body would provide the necessary oversight that Members on both sides of the House, but particularly Opposition Members, are looking for to try to ensure that the right checks and balances are in place—as my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) mentioned—and we have the right use of statutory instruments—
Daniel Zeichner (Cambridge) (Lab)
I will vote against the Bill tonight, for the slightly quaint reason that that is what I told my constituents I would do back in June —that is partly why I have been sent here—and for other reasons, some of which we have heard from Members on both sides of the House. The hon. Member for Gloucester (Richard Graham) mentioned the House of Lords Constitution Committee. Coming from Cambridge, I had the privilege on Friday of spending an hour talking to the highly respected Professor Mark Elliott, who advises that Committee. He said:
“The fact that the central aim of the Bill—that is preserving EU law post exit—is a necessary one does not place the Bill beyond criticism.”
He went on:
“The Bill in its present form is profoundly problematic in legal and constitutional terms. It is an affront to parliamentary sovereignty. It eviscerates the separation of powers principle and it risks destabilising the UK’s increasingly fragile territorial constitution.”
He says an “affront to parliamentary sovereignty”, but what does he know? He is just the leading expert on the issue.
I will also vote against the Bill for another reason, which has not been stated loudly enough in this debate, except by my right hon. Friend the Member for Tottenham (Mr Lammy). It is increasingly said in parts of the country that we should not withdraw from the European Union at all, because it is not in our national interest to do so. I fully understand that opprobrium will probably be heaped on me for saying that, but, actually, I am only stating the obvious. As the farcical non-negotiations continue to fail to proceed, it is clearer and clearer that the most likely outcome is a last-minute fudge that will satisfy no one. It is also clear that, at the end, the choices open to us must include the possibility that all the alternatives on offer are worse than staying in, and that is putting it at its most negative. We should negotiate on the key issue that we all know is at the heart of this, which is migration, and securing the changes that would satisfy the concerns of many who voted leave, without doing the undoubted economic damage that we risk by continuing on this path.
To those who say that the decision was made more than a year ago, I say that the world has changed. As my right hon. Friend the Member for Derby South (Margaret Beckett) and my hon. Friend the Member for Ynys Môn (Albert Owen) so powerfully said, we have all been through a general election. The Prime Minister went to the country, demanding a mandate, and we know what happened—she did not get it.
The wider world has changed as well. A year ago, it could have been plausibly argued that we could negotiate reliable, mutually beneficial trade deals with the United States in a way that now seems wholly unlikely when that country is governed by such an unpredictable and difficult President. In the rest of the world, we see China becoming more authoritarian, Russia hardly more helpful and North Korea a real threat. In a world that seems so increasingly volatile, whom should we look to in times of need? Our wisest option would be our European neighbours, who increasingly look like the most sensible major players. What a foolish path to be embarking on in such dangerous times.
I will not support the Bill, but I would like to make one comment about one of the more detailed provisions that profoundly concerns me. On Thursday, my right hon. Friend the Member for East Ham (Stephen Timms) explained very eloquently the danger of leaving the charter of fundamental rights. In particular, he mentioned the consequences of not including the clause relating to the protection of personal data. As he rightly said, there is a danger that we will struggle to achieve a data adequacy agreement, which in turn would have severe consequences for UK businesses and data users. The hon. Member for Chelmsford (Vicky Ford), speaking from the Government Benches, made a similar point this afternoon. But it goes further than that, because securing an adequacy agreement depends not just on the ability to use article 8, but on the perception on the part of our neighbours that the UK is not prepared to diminish data privacy, because in the end this will be a political decision, and it will give others the opportunity to say that we are weakening our position, making it easier for them to deny us that vital adequacy agreement.
That is one of the many detailed points that could be made. I fear that we are in danger of sleepwalking into a calamity. Our task as Members of this Parliament is to look into our consciences and reflect on the best way forward for our country. I suspect that there are many in this Chamber who will vote for the Bill tonight who know in their heart of hearts that we are on the wrong path. Let us try and find a way back.
Ross Thomson (Aberdeen South) (Con)
Let us cut through the political smoke and mirrors that we have heard in this debate and be clear about what the Bill actually sets out to do. On the day the UK leaves the EU, we need to be ready and prepared to take back control of all the laws and regulations that for the last 40 years have been entirely controlled by Brussels. This Bill enables us to carry out the express will of the people, following through on their instruction to end our membership of the EU. To oppose the Bill now is to oppose that fundamental principle and constitutes an act of betrayal against the referendum result and the will of the people, who we trusted to make the decision on our EU membership.
I am in no way surprised that SNP Members want to use the Bill to thwart Brexit. True to their nationalist politics, the SNP hailed the votes of 1.6 million Scots as meaning that Scotland voted remain—they were Scotland’s voice. Meanwhile, the votes of over 1 million Scots were simply airbrushed out of the picture altogether. Members of this House might not be aware that 400,000 of those leave voters in Scotland were SNP supporters. Following the recent logic of Scotland’s own Brexit Minister, Mike Russell, in evidence to committee, the 400,000 SNP leave voters, not to mention SNP leave MSPs, are somehow hostile to devolution. On the day that we mark the 20th anniversary of the referendum to create the Scottish Parliament, Mr Russell’s remarks are yet another incredible attack, although this arrogant dismissal of the 1 million Scottish leave voters follows an SNP pattern of trying to portray them as simply not existing.
Leaving the EU will make Scotland’s Parliament inherently more powerful, with new powers over areas that the EU currently legislates in. Not only does the SNP position on new powers show how truly brass its neck is; it shows the shameless depths of scaremongering that the SNP will delve into to play constitutional tricks, fuelled by their politics of division. By voting against the Bill, the SNP will vote against more powers for Holyrood and against Nicola Sturgeon and her Government’s making more decisions in Scotland. Though, to be fair, I cannot blame Nicola’s Westminster colleagues for not wanting more powers for Scotland, given the Scottish Government’s dreadful performance on education, health and the economy, after nearly a decade in power. Given that track record, I can see why those on the SNP Benches are feart to give Nicola Sturgeon more power. Naturally, they want to hold on to their seats here.
I listened to the hon. Member for Glenrothes (Peter Grant) on Monday railing about how the people of Scotland are sovereign and that that needs to be protected against some imaginary Westminster power grab. Where was the SNP’s belief in sovereignty over the last 40 years, when laws were imposed on the people of Scotland by the EU without debate in this place or, in the last 20 years, in Holyrood? No option for debate, no option to amend, no option even to reject—where was the SNP’s concern for sovereignty then? Given that the SNP still wants the EU to retain those powers, its current argument is simply absurd. This Bill delivers our exit from the EU and it will make Scotland’s Parliament stronger. The decision that the SNP faces is: will it be stronger for Scotland or will it maintain its stance of being only stronger for Brussels?
Finally, for all those seeking to block the Bill, let us be absolutely clear. In frustrating the process, they are dismissing the voice of the public by not carrying out their instruction, and in doing so, they serve only to feed the voter disaffection with the democratic process and their distrust in politicians. There is more debate and argument to come in this place, and rightly so. However, at this stage Parliament should be uniting on the principle of this Bill. I urge Members to support it.
Vernon Coaker (Gedling) (Lab)
Let me start by giving some context to this EU withdrawal Bill. Just a few months ago, the Prime Minister went to the country. What was the purpose of going to the country? It was because she wanted a bigger mandate, given the ups and downs to come over Brexit. Let us remind the Government what happened in that election. Did they win? Did they increase their majority? No, they did not. They lost seats and their majority went. With this Bill—and, indeed, tomorrow’s proposed Committee changes—we have a Government believing they have a mandate to act as though they had won the election and their views had been endorsed by the British people.
A Government who were offering true leadership to the country would now be saying, “We recognise the closeness of the referendum and we will respect the result, but our country, which we seek to govern, is divided. Our people are divided”—we heard some of that just before I spoke. A Government showing true leadership would seek to bring the country together and say to people, “We have to find a way through.” But what has the Government’s starting point been for this? Their starting point has been, “How do we get this EU withdrawal Bill through Parliament, given that we don’t have a majority?” We now see this Bill constituted in the way that is, with respect to SIs and the grabbing of power.
Let me be clear: my constituency voted to leave—I respect that—but what my constituents did not vote for was leaving at any cost to jobs, business, workers’ rights, the environment, welfare or the unity of our country. I have absolutely no problem going back and arguing to my constituents that, yes, I respect what people said and how they voted, but also saying, “I cannot, as your representative, stand up in this Parliament and say that what is on offer from the Government in this EU withdrawal Bill will be of benefit to you and your family.” This is not about trying to ignore the will of the people; it is about trying to give expression to it in a way that works—not to block Brexit, but to get the best for it.
We have only limited time today, and some of these further debates will obviously happen in Committee, but let me just say one thing to the Government. We have heard calls for amendments but, in many respects, the whole Bill needs to be rewritten. Clauses 7, 8, 9 and 17 give the Government huge powers. Indeed—this is absolutely astonishing, and I have never seen it, although a constitutional expert would no doubt tell me that it has happened before—the Government are giving themselves secondary legislative powers not only to deal with many of the things that may arise, but to modify the primary legislation itself. This legislation could be modified by a Government-stacked Committee on the basis that it was not working. It is unheard of; it is an affront to our democracy and to the way this Parliament works. It is not what people who voted leave voted for, and nor is it something I believe the people of this country would want to see.
Ministers should not take my word for it. In its interim report, the House of Lords Constitution Committee absolutely lambasted the Government for using its original report to say that the Committee supported the Government’s use of statutory instruments. Let me read the summary conclusion of the interim report, which was published on 7 September, just a week ago:
“Overall, we conclude that the Bill is highly complex and convoluted in its drafting and structure. This is not to deny that it must inevitably grapple with a set of difficult legal issues. But it is a source of considerable regret that the Bill is drafted in a way that renders scrutiny very difficult, and that multiple and fundamental constitutional questions are left unanswered. We will consider all of these issues in greater detail in our forthcoming inquiry on the Bill.”
What an absolute lambasting and castigation of the Government’s position by a cross-Bench, cross-party House of Lords Select Committee. Ministers will have to respond to that report by actually taking account of it.
I will finish where I started: a Government showing true leadership would seek to bring the people together, would seek to bring this Parliament together and would seek to bring the country together. Instead, we have a Government who are dividing everyone.
Antoinette Sandbach (Eddisbury) (Con)
Well, there is a coming together, because earlier today I heard the speech made by the right hon. Member for Don Valley (Caroline Flint), who has a completely different political philosophy from me, and I agreed very much with what she said. Indeed, my hon. Friend the Member for Gainsborough (Sir Edward Leigh), who has a completely different view from me on Europe, spoke very powerfully about the need for magnanimity.
The reality is that this piece of legislation is necessary to give the Government the tools to avoid the disastrous consequence of crashing out of the EU without the appropriate rules and regulations in place. It is quite ironic that those who spent 40 years fighting the EU are now leading the charge for the single largest codification of EU law in our country’s history. However, that is not a reason to vote against the Bill; in fact, it may well be a reason to vote for it, because it will put into UK law some of the rights and privileges we have enjoyed because of our membership of the European Union, and I want as many of those rights and privileges as possible to come into UK law.
I campaigned for remain, but I voted to trigger article 50 earlier this year, as I felt it was right to do in the interests of our democracy. The crux of the leave vote was about taking back control, but I agree with many right hon. and hon. Members on both sides of the House that it was about taking back control into this House and this Parliament, not transferring extensive powers to Ministers. The Bill in its current form, particularly clause 7, is an unacceptable attempt by the Government to demean the role of Parliament. If Members of this House are to vote in favour of a Bill that delegates powers to Ministers, those powers must be much more tightly defined, with parliamentary scrutiny allowed for. While I recognise the importance of ensuring that the process is as smooth as possible on exit day and in the ensuing weeks, Parliament must retain oversight of the process.
Previously the Government did not intend to give Parliament a say on the final deal or, indeed, on article 50—the House certainly overwhelmingly endorsed article 50—and we now face a similar prospect of authority being pulled back from this House. How would that affect legislation around the nuclear industry, for example, which is inextricably linked with EU states and institutions? There is great anxiety about our ability to replicate the Euratom agreement and to make such arrangements in time. I recognise the inclusion of a nuclear safeguards Bill in the Queen’s Speech, but if a future Government saw requirements on the nuclear industry as restrictive, this Parliament would have no ability to hold that Executive and the replacement measures they introduced to account under the terms of this Bill.
I, too, took particular interest in the report by the House of Lords Constitution Committee, which said:
“We would expect that a statutory instrument which amends EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure.”
I would support that, and I was encouraged by the Secretary of State’s indication on Thursday that he would take account of sensible amendments tabled in this House.
I also have reservations about repealing the European Communities Act 1972 before we know what the transitional arrangements will look like. I am glad that the Government see the need for a smooth and orderly exit, but I see that as maintaining membership of the customs union, at the very least, until a comprehensive free trade deal is agreed. I am sceptical of voting to repeal the 1972 Act until we know the dynamics and practical workings of the transitional phase. Achieving such an agreement must be an urgent priority before we create legal risks and uncertainties in the manner that the Bill as currently drafted is in danger of doing.
One point that has been lacking in the debate is how all this is perceived in the EU. The future prosperity of our country heavily relies on what we are able to achieve throughout this negotiation process. The Government must be seen to be engaging with Parliament on a cross-party basis. That would give the aims and ambitions of the Secretary of State and his team far more credibility and clout as he negotiates with the other 27 EU nations.
I have some reservations about the time allocated to debate the Bill. I very much hope we will get the assurances asked for by many Members on both sides of the House about the possibility of having more time, if it is needed. I urge the Government to consider sensible amendments, but I ask others to please support the principle of the Bill and to allow this House to amend it.
Mr Mark Hendrick (Preston) (Lab/Co-op)
I accept the result of the referendum even though, as a committed European, I fought vehemently on the remain side. Even though I believe that the leave campaign told a pack of lies, I still think that I am obliged to support the outcome of the referendum, which the leave side won by 52% to 48%—very close to the 53% to 47% result in my constituency. I did not like the result, but I respect it, so afterwards I voted for article 50. I have no regrets because, although I deplore the result, I accept it.
We need all these laws transposed into UK law en masse. I have no problem with that. The 12,000 regulations amassed over 44 years need to be in place so that the UK can continue to function normally. The hon. Member for South Dorset (Richard Drax) mentioned unelected officials making these decisions, and many other Members have talked about faceless bureaucrats, but as a former MEP who used to spend hours sitting on—in many cases extremely boring—committees, often late and into the morning, I can say that there has been a great deal of democratically elected input into many of those directives. When I was a member of the European Scrutiny Committee, I fully understood the toils of many elected politicians and what they would have been through when the directives finally arrived in this House for scrutiny. It seems a shame that a former member of the European Scrutiny Committee did not appreciate how those directives and regulations were made.
The sweeping and draconian powers introduced by the Bill are an affront to this Parliament and to democracy, with the Henry VIII powers and the Government’s taking control of powers that should be devolved to the devolved regions and Scotland. Many leavers talked about taking back control; this does not bring back control to the democratic Parliament, but gives it to a cobbled-together minority Government who thought that they would have a huge majority but have not. That minority Government seek overwhelming power when they are struggling in Brexit negotiations and want to make big changes to European laws that they have been complaining about for decades.
The scenario looks likely to be as follows. In 2019, the Government will either get no trade deal, a very bad one involving tariffs, or something akin to a WTO trade deal. The deal will be put to Parliament and the people, and people the length and breadth of the country will see that that deal is bad. I believe that the mood in this country will change from being 52% in favour of leaving to quite the reverse. A deal with the US, China and/or India will be embryonic, if not very distant, on the day before Brexit. EU law will then become UK law. The day after that, the Government will start doing what they have been threatening to do for generations—they will set about health and safety regulations, employment regulations, consumer law that protects citizens, and environmental regulations.
The scene is set for the UK to go backwards, with a hard Brexit meaning a huge problem with trade and prosperity. We will see a diminution of the rules, regulations and protections that the EU has brought to workers and consumers in this country. At the same time, business and trade will be hard hit. This is a recipe for disaster and an attack on workers, consumers and businesses up and down the country that deserve better.
This Government will go down in history as one who failed to deliver a successful Brexit, failed to compensate for what was lost through the trade and business they promised with other parts of the world, failed to protect our workers and consumers, and failed to protect the businesses that depend on them. I do not think that the public will forgive the Government; history certainly will not. I shall oppose the Bill.
Alex Burghart (Brentwood and Ongar) (Con)
I am grateful to you, Mr Speaker, for the opportunity to speak in this historic debate. It is getting late and a good many of the issues that need raising have been raised, but I would just like to return to a few of them.
I rise to support the Bill for one very good reason: it is the sort of Bill most of my constituents would like to see. They voted overwhelmingly to leave the EU and, like me, they want us to leave in as orderly a fashion as possible. The Bill ensures that we do not create legal black holes and therefore grand uncertainty for employers, employees and investors. It allows future Parliaments to amend all laws as they see fit and, in that sense, allows Parliament to become sovereign again. It is adaptable to the inevitable uncertainties of the Brexit process. The Bill achieves all that, and it is to the credit of the Government and of officials that they have managed to do it under tight time constraints.
There are some reasoned and principled objections to the Bill and to how it has been presented. It is clear that parts of the House will require guarantees over the so-called Henry VIII powers. As my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) mooted earlier, that might be possible if the Government set a legal limit on their ambitions. That said, we must not in our admirable quest for parliamentary scrutiny forget that this is a fiendishly complex transfer of legal powers the like of which this House has never seen. For that reason, we must afford the Government a degree of plasticity. We do not yet know how the final deal will turn out or when it will be available to the House. The Bill must be adaptable to permit that process to proceed as best it can and to allow for a multitude of outcomes.
Getting that give and take on particular clauses and powers will take time. If the House finds that it does not have enough time in Committee, it must have more. Call me boring, Mr Speaker, but I was a bit disappointed when the House did not sit past five on Thursday—it was very sad to see such big beasts manacled by a five-minute time constraint. I heard the Father of the House rightly pooh-pooh the Blairite family-friendly hours under which we labour. Family friendly? Is someone yanking my chain? Which of us in the Chamber today gets to put our children to bed of a night as it is? We should carry on sitting until our work is done; if we have to sit late, if we have to sit some Fridays, if we have to think about the length of recess, we must. The importance of getting the Bill right goes beyond those concerns. This is a job that requires sacrifice.
It is my firm belief that this Bill can be got right. I know that Members opposite feel the same, because in all the hours of debate that we have had none of them has been able to raise a serious reason why it should be voted down on Second Reading.
Mike Amesbury
This debate is about not if but how we leave the EU. I was elected to this House very recently to speak up for my constituents, not as a spectator. I want Parliament to take control, stand up for democracy and protect parliamentary sovereignty.
Alex Burghart
I thank the hon. Gentleman for that intervention.
I know that Opposition Members feel the same as me, because they have not raised a single meaningful reason why the Bill should be voted down. As my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) said on Thursday with a logician’s concision, to say that we will oppose the whole Bill because we disagree with a few clauses is a non-sequitur. If we go hunting for the sequitur, however, I believe that we can find it in the admirably principled intervention made by the right hon. Member for Don Valley (Caroline Flint) earlier. The truth is that if the Bill were to fail tonight it would be very difficult to bring it back. The Government would have to introduce a new Bill in a new Session, or this one would have to be reintroduced in a suitably different form so as not to fall foul of the same-question rules. In short, voting this Bill down runs the risk of having no Bill. It runs the risk of legal black holes, of terrible uncertainty, and of investor panic and economic shock. That is what the Opposition will be voting for tonight.
I will go further than that. The Opposition Front Benchers know full well that if they defeated the Government they would not stop there; they would try to bring the Government down. The Opposition wish to vote this Bill down tonight because they know that defeat on such a central piece of legislation might cause the Government to fall. That is their motivation—nothing more, nothing less. The shadow Secretary of State does not want the Government to go back to the drawing board, he wants the drawing board for himself. He says that he wants the article 50 process to succeed. I believe him, but I do not believe that he wants this Government to succeed in doing it. I believe that he will put the interests of his party above the interests of the country in that regard. If he succeeded in his aims, he would do so only after a period of terrible turbulence for the country and after a terrible loss of time—and time, right now, is a terribly precious commodity. He says that he sees this not as a great repeal Bill but as a great power-grab Bill. Well, that is certainly the purpose for which he intends to use it. He is accusing Government Members of that of which he is guilty. I ask him to do the honourable thing and to put his political ambitions on ice for the purposes of the vote tonight so that this House can move more quickly to a detailed discussion of the essential clauses within this Bill.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I will vote against this Bill tonight because I have listened to my constituents in Cardiff South and Penarth and because I am continuing to listen to them.
First, I want to praise the absolutely forensic examination of the Bill by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), by my hon. Friend the Member for Rhondda (Chris Bryant), and by the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve). I also praise some of the speeches that we have heard from Conservative Members. The hon. Member for Chelmsford (Vicky Ford) exposed the complexity of the Bill. Fair-minded comments have been made both by leavers and remainers on the Government Back Benches, including the hon. Members for Eddisbury (Antoinette Sandbach) and for Gainsborough (Sir Edward Leigh).
I am afraid that this Bill is the latest chapter in a sorry few months for this tin-eared minority Government. We have seen—let us be frank about this—an utter shambles in the negotiations. That is the view of the public, 61% of whom think that the Government are mishandling the negotiations, and of business leaders, with FTSE leaders refusing to sign the letter that No. 10 was trying to hawk around them last week. [Interruption.] Indeed, where is that letter? They would not sign it.
We have seen a complete failure to make progress. Where are those trade deals we were promised a year ago? Where is the coming together that the Prime Minister promised us? Instead of her trying to find a consensus on this absolutely generationally significant decision, we are now seeing the ideological pursuit of a hard Brexit driven by the one group on her Benches who are keeping her hostage. We are offered the illusion of being told that we are taking back control when instead we are seeing a Government taking back control from the devolved Administrations of Wales, Scotland and Northern Ireland, from this House, and indeed from the people.
This must be seen within a wider context—the vote on the Committees tomorrow, the delays in setting up the Select Committees, the programme motion to limit the time spent on this debate, the wider restrictions on judicial review, the charities Act muzzling organisations up and down this country, and the Trade Union Act 2016. This is all part of a similar agenda by the previous and present Governments to shut down democratic debate.
There are many wild claims about what the public want in these negotiations. Well, are we even asking them as we go along? The Government do not want to listen to Parliament or to the devolved Administrations. My hon. Friend the Member for Walthamstow (Stella Creasy) and I, as co-operators in believing in co-operative structures where we listen to Members, have suggested setting up citizens’ juries on the negotiation process that would ask the public about the complexities of the negotiations as we go along, not just based on one decision made on a day in June last year. What are the Government so afraid of?
We have covered at great length in this debate the many problems with the Bill. I, too, am deeply unhappy with the Henry VIII powers. I would never trust giving those powers to a Government in any Bill, let alone a Bill of this seriousness that gives them the ability to amend it by statutory instrument, to control the exit day, or even to set up multiple exit days to string out the process to their advantage. I do not believe in giving them those sweeping powers.
Then there is the devolution power grab—the “naked power grab”, as First Minister Carwyn Jones put it. I am happy to work with those from the SNP and Plaid Cymru and others who will seek to defend the devolution settlement that we have all fought for over the past 20 years. The Government say, “Trust us on the devolution settlement”, but look at what they did with the Agricultural Wages Board in Wales. Look at what they are now saying they will do to undermine the Trade Union (Wales) Act 2017, which the Welsh Government have just passed under their own powers. The Government want to undermine that, and they would seek to undermine the devolution settlement going forward.
We can see the loss of rights at the heart of the Bill. The hon. and learned Member for Edinburgh South West (Joanna Cherry) pointed to the example of the case involving LGBT pension rights. The former Attorney General, the right hon. and learned Member for Beaconsfield, said that given how the Bill is currently drafted, those rights could evaporate because they would not be justiciable. The Trades Union Congress has today pointed out how the Bill will put workers’ rights at risk.
I have said much about the single market and the customs union. I do not think the Bill gets it right on the transition. We have to get that right—that is an absolute no-brainer for our businesses—but I want us to stay inside the single market and the customs union. I welcome the general secretary of the Trades Union Congress setting out the trade unions’ concerns about these issues today, just as businesses are repeatedly setting their deep fears out to me both in public and in private. Like my hon. Friend the Member for Lewisham East (Heidi Alexander), I do not want to sacrifice jobs and businesses on the altar of ideology.
Where is the guarantee in the Bill about a final parliamentary vote on the deal before these powers are exercised? Again, the Government say, “Trust us”, but where is the guarantee in the Bill?
I have a much bigger problem with the Bill and the process around it. Democracy is a process, not an event. It is a great irony that those who have often claimed that they support and defend democracy and liberty, and have said that is the very reason why they are pursuing this Bill, at the same time want to restrict our democracy and liberties, and the liberties of this House, by setting deeply dangerous precedents that will echo down the decades to come. We should not simply preserve the binary decision of the referendum day in aspic, freeze it in ice and pray it in aid of every variety of hard Brexit that certain Conservative Members want to push ahead with. Where have those democrats gone—where have the original hon. Member for Wycombe (Mr Baker) and right hon. Member for Haltemprice and Howden (Mr Davis) gone? They smile wryly, but they know in their heart of hearts that this is not right. A majority may have voted to leave the EU in June last year, but I do not believe they voted to give up their democratic rights and their right to be heard on so many issues.
Jeremy Lefroy (Stafford) (Con)
As always, it is an honour to speak after the hon. Member for Cardiff South and Penarth (Stephen Doughty).
We are debating the Second Reading of the European Union (Withdrawal) Bill, and I will be supporting it, but of course it is only half the story. The Government quite rightly want a smooth exit in terms of the laws that we will have on day one after leaving the EU, but the other side is that we need a smooth transition into the state that we will be in after EU withdrawal. We are nowhere near that at the moment, and the Government need to do some rethinking.
As many people have said, this Bill needs improving. It is certainly not perfect. I will not go into the details, but clearly clauses 7 and 9 are going to need much more circumscription around their powers. In particular, with regard to clause 9, we need a reference to approval of the final deal by Parliament.
I agree with all the colleagues on both sides of the House who have talked about the need to have some kind of efficient mechanism for dealing with the vast volume of legislation that is going to come forward, whether it is called triage or some other such name. This House is going to have to get used to debating an awful lot of legislation in future. We rightly say that we are repatriating the discussion, debating and approval of legislation from Europe in future, but after we leave we will still have to take note of, and in some cases bring into our own law, European legislation. Otherwise, we will simply not be able to trade in certain extremely important areas such as financial services, to name but one.
Therefore, we might as well get used to such detailed scrutiny of legislation as we go through this Bill. That is why I believe that eight days may not be enough. I am prepared to vote for the programme motion, but I echo very many colleagues in saying that we may need to revise that if the Government see that there is not enough time to scrutinise the Bill within those eight days of eight hours each.
I cannot understand why the Government have decided to make an exception for the charter of fundamental rights in clause 5. If we are going to take over legislation in full and have a smooth exit, let us take it all over. If we want to revise it or get rid of it later, we have said that we will do that. There are many ways in which we can make the charter of fundamental rights fit for purpose. Indeed, I remember working closely with my right hon. Friend the Secretary of State for Exiting the European Union to frustrate a previous Government’s attempts to pull out of a different Bill of Rights, the European convention on human rights, so I hope that he will have great sympathy with what I have to say.
Finally, let me return to the question of withdrawal. We are trying to leave in as smooth a way as possible, and we have to try to accede to the post-EU situation in as smooth a way as possible. I thought about this long and hard as a member of the Exiting the European Union Committee in the last Parliament; I am honoured to be on that Committee in this Parliament as well. I can see very little alternative to—in fact, I would welcome—accession to the European Free Trade Association. I think that that would be an extremely good and smooth way to transition out of the EU and into what we will have afterwards. The Government are rightly concerned about having a smooth exit with all the law in place when we leave, so they have an equal responsibility to ensure that our entry into the post EU membership situation is as smooth as possible. I urge them to make that their No. 1 priority, and to say that joining the EFTA, which has numerous forms of membership, is the best way.
Helen Goodman (Bishop Auckland) (Lab)
It is a pleasure to take part in the debate, and it is a particular pleasure to follow the hon. Member for Stafford (Jeremy Lefroy). He gave a thoughtful and considered speech, the tone and content of which were extremely consensual and helpful. If I may say so, it would be nice if more Conservative Members gave similar speeches.
I accept the referendum result, and I am happy to vote for the amendment in the name of the Leader of the Opposition tonight because it accepts the result as well. A majority of my constituents voted for Brexit, but more people have contacted me to raise concerns about the Bill—in particular, about the timetable and the potential impact on environmental legislation—than to tell me that they are happy with it.
At the beginning of the year, the Procedure Committee embarked on an inquiry into what was then known as the great repeal Bill. The inquiry was halted by the general election, but in April we published evidence and interim findings, and I want to share some of them with colleagues tonight. The potential in the Bill for the excessive use of delegated legislation is alarming. The Bill is not what people were promised during the referendum campaign, which was greater parliamentary sovereignty. It is a power grab by Tory Ministers, who cannot be trusted, as they have repeatedly shown.
Relying on delegated legislation will not give Parliament proper opportunities for debate, scrutiny or control. Let me remind hon. Members of some of the processes. A statutory instrument introduced under the negative resolution process can become law without debate or a vote. It can even become law before it has been published and laid before the House. The Secretary of State for Justice is frowning, but that is the case. Paragraph 1(3) of schedule 7 sets out that most of the statutory instruments will be subject to negative resolution procedure unless—Ministers are nodding now—they are about transferring powers from European agencies. Last year, a fifth of statutory instruments were in force three weeks after publication. If Ministers were given such a power, there would be nothing to stop them signing laws one day and seeing those laws on the statute book the same day.
Scrutiny by the affirmative and super-affirmative processes is not much better. Such statutory instruments must be approved explicitly, but most go to Committees upstairs, and now the Government are trying to overturn the result of the general election by packing those Committees. Even when such statutory instruments are debated by the whole House, time is limited to 90 minutes, and they cannot be amended.
The drafting of clause 7 is wholly objectionable. It is too wide. Ministers may make regulations as they consider appropriate—not necessary, but appropriate—and regulations may repeal and replace primary legislation. That indicates that it is not the Government’s intention to limit such regulations to technical and non-controversial matters.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
My hon. Friend is making a brilliant speech, but is the challenge of the Bill not this: we used to talk in this country about an elected dictatorship, but what is now being proposed is a barely elected dictatorship? Has she ever seen a bigger gap between a Government’s mandate and the power that they seek?
Helen Goodman
No, never. The fact that all the replacement of the functions of the 40 EU agencies is to be done by regulation means that vast swathes of legislation, covering matters from aviation security to medicine safety, will be implemented using these processes.
The Procedure Committee received evidence from academics, four other Select Committees and a large number of civil society organisations, from the TUC to the Archaeology Forum and a lot of environmental groups, who are rightly concerned because 80% of environmental legislation is derived from the EU. All our witnesses raised important issues. The risk is that delegated legislation will be used not just to transfer EU law, which is the Government’s stated intention, but to change its legal effect.
In clause 9 the Government seem to be seeking the flexibility to change the law to comply with the withdrawal agreement. How can the House be expected to agree to that, given that the Government have steadfastly refused to agree or even share their negotiating objectives with the House? The Government are still refusing to provide in primary legislation for a vote on the final deal, but we are supposed to pre-agree now any changes that flow from the withdrawal agreement. I know what my constituents want from Brexit. They want to control immigration, maintain the social chapter and continue with the EU arrest warrant. But I do not know what the Government want. We cannot pre-approve the final deal.
The Government claim that they want certainty, but their secrecy is preventing anyone from predicting where we will end up. It would be normal to share statutory instruments in draft, but the Government have not even told us in which areas of legislation they will use these procedures. Another major issue is who decides which procedures are used, and how Parliament, rather than the Executive, can do that. This cannot be dealt with solely through the Bill. Changes may be needed to Standing Orders. We may need to establish new Select Committees in the Commons and jointly with the Lords. The Leader of the House, who is not even in her place, has utterly failed to bring forward any plans to show what she will do in terms of resources, time or procedure. The Government have deliberately delayed establishing the Select Committees and have been secretive, nervous and unco-operative. Even today, Tory Members have had a letter from the Secretary of State, but the rest of us have not seen it. We cannot trust these Ministers, and so we cannot give them such vast powers.
Victoria Atkins (Louth and Horncastle) (Con)
I will endeavour to follow the plea of the hon. Member for Bishop Auckland (Helen Goodman) and deliver what I hope will be a thoughtful speech. She may not agree with every point, but I promise her that I have been thinking about it a great deal as I have sat through the debate not just today, but on Thursday. That has given me quite a lot of time to do so.
I have approached this debate as I would have done if I had been instructed in a case in my previous career. We have the end point, whereby the United Kingdom is leaving Europe. Can we achieve that end in a smooth way that provides as much certainty around the norm as possible? Indeed, I believe that the Government must achieve that in the smoothest way possible for all our constituents and all the businesses upon which our economy relies. Ensuring a smooth exit is the right thing to do legally, morally and economically. There has been talk in the Chamber today about the impact on business, and we know that having successful businesses and a growing economy are the things that create jobs and help to pay for the services we care about, such as the national health service. It is in the interests of each and every one of us for the Government to achieve the smoothest possible transition out of the EU.
How do we achieve that? The Bill starts from the premise that EU law will be transferred into British law. At this stage, there are no changes; there is purely a replication across from EU law into the British legal system. Let us not forget that that is quite a lot of law—40 years’ worth of law making—and it is an enormous task. What measures can the Government realistically take to achieve it? I have listened with great care to Members on both sides of the House, but particularly Opposition Members, who plan to vote against the Bill tonight. I have listened to what they have said about the process, and there are indeed some points on which areas of agreement can be found across the House, but I have not yet heard anyone come up with a different way of doing this in the very short timeframe we have. It seems to me that we have to work on the basis that the wholesale adoption of EU law is the way to go, and I foresee in the years to come that this Parliament will play a very active role in deciding which laws it likes and which it does not.
I want to inject just a touch of realpolitik. After two days of debating the power grab, as it is called by some, by the Executive, I suspect that any Minister seeking to exercise the powers under clauses 7, 9 and 17 will be very careful in so exercising them, because they know that many eagle-eyed people on both sides of the House will ensure that they behave properly and within the spirit of the law.
Mr Hendrick
Many of us have a beef not with the way in which the laws will be transferred from Europe to the UK, but with the way in which the laws will be treated afterwards. The sweeping powers that the Bill provides will make it possible for Ministers to abuse powers that they have not been given by the electorate. This House should have control of that, not Ministers by their gerrymandering in this Bill.
Victoria Atkins
I am grateful to the hon. Gentleman for that intervention because it gives me the opportunity to mention the sunset clauses in relation to both clauses 7 and 9. I will not make Ministers’ lives easy, because I note that there is no corresponding sunset clause in relation to clause 17, but it may well be possible to discuss that in Committee. We have the comfort of knowing, however, that clause 9 will stop once exit day has happened and that clause 7 will operate for two years thereafter.
As I have said, I have had the pleasure of listening to two days of debate on this Bill, and the quality of debate has been excellent. There have been some very thoughtful suggestions about how the Bill can be perfected, and I have been emailed, as have many colleagues, by constituents with their thoughts on the Bill. In particular, I note the concerns about triaging SIs. I also note the contribution of my right hon. Friend the Member for Newbury (Richard Benyon) about infractions, and those of my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) and my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) about the Francovich rulings. I am sure that Ministers have listened to those points and will bear them in mind on this—let us face it—unprecedented legal course that we are taking. It is a very exciting time: it is not what I voted for, but we are in it and we have to make the best of it now. We must ensure the smoothest possible exit from the EU to our new place in the world.
I will end with this point: in 2015, I stood on a manifesto commitment that I would support the Conservative Government in holding a referendum and then in honouring its result. Tonight, I will vote to repeal the 1972 Act and to start the smooth process of transition. It is a promise made and a promise kept. We in this House are often accused of not keeping our promises, but this is a promise that I feel morally and democratically obliged to keep, and keep it I will.
Mary Creagh (Wakefield) (Lab)
I will be joining my colleagues in the Lobby tonight to vote against this Bill, because of the unprecedented Henry VIII powers that will transfer power away from Parliament and give it to Ministers. In some ways, these powers will turn the Prime Minister into a female version of Louis XIV, the sun king, who, as he lay on his deathbed in the palace of Versailles, said, “L’état, c’est moi.” That is what she is doing with the Bill, but as representatives of the British people, sent here with a democratic mandate, we say, “L’état, c’est nous.” We are the legislative force in this country; no sun king or sun queen will be created on our watch, and we will not give up our parliamentary democracy without a fight.
It is perfectly possible to recognise and respect the result of the referendum without sacrificing hard-won economic, social and environmental rights and freedoms. As we have heard, at the general election the people declined to give the Prime Minister the majority she sought. Through the general election, the people have already rejected a hard Brexit, so the question before us tonight is: who governs Britain—this Parliament, or a Prime Minister reliant on some hard-liners in her party and on the Democratic Unionist party, which she is paying whatever it demands to get her laws through?
Clause 9 would allow Ministers to introduce regulations to make any provision that can be made by an Act of Parliament, including modifying this legislation, a huge power that will last right up to exit day. It is therefore the great power grab Bill, which will create an infinite legislative loop: the powers can be extended infinitely to amend laws, through delegated legislation, with no scrutiny. The fact that the power to amend this Act lies within it means that the Bill can eat itself; it is like a constantly regenerating loop in some science fiction nightmare, providing new powers ad infinitum at the whim of whichever Government are in place at any given moment.
We have seen this before, because the Government have form. They did not want to give this place a vote on article 50, or on the final deal. They fought at every turn to frustrate this House in overseeing what they are doing, and frustrate us in our duties and responsibilities to our electors. The powers in clause 9 will end on exit day, but the Bill allows exit day to be set by Ministers, so those powers could continue for many years—indeed, there could be several exit days. That is not how we make laws in this country. We also have money and Ways and Means motions before us tonight that mean that Ministers can spend any sum or raise any tax as a result of this Bill. As well as being a legislative blank cheque, the Bill is therefore a literal blank cheque for the Government. That is not how we make laws in this country.
All these new laws made by delegated legislation can be amended by delegated legislation. The Government say that there will be opportunities for scrutiny, but they want a majority of one on all Delegated Legislation Committees, so that they can rubber-stamp the delegated legislation, despite failing to win a majority at the general election. That is not how we make laws in this country. The Bill can create new criminal offences under the negative resolution procedure of things such as food adulteration or trading illegal chemicals. New criminal offences will be made with no parliamentary scrutiny. That is not how we make laws in this country.
This Bill should protect our hard-won social, environmental, political and economic rights. In fact, it guarantees nothing of the sort. Even if those rights are somehow replicated in the future, the Bill is silent about remedies, and it is the remedies, not the rights, that are the spur to action. The threat of EU fines led to us taxing waste that goes to landfill, which kick-started the recycling industry in this country. The threat of massive fines for filthy air pollution has led to the Government publishing not one, not two, but three clean air plans. The threat of fines under the water framework directive has led to UK water companies cleaning up our filthy beaches and rivers. Those environmental improvements and industries were created because the threat of financial penalties focused the minds of Ministers and civil servants. If there is no remedy for the citizen, the right that the law confers is toothless.
The Secretary of State for Exiting the European Union said on Second Reading that the Government would introduce proposals. Why are they not in the Bill? How many rights that we currently enjoy are threatened by the Bill? Francovich will not apply to the individual, so future rights will be removed from citizens. The acquis communautaire, which we have adopted, refers to the environment, but a third of it cannot be neatly cut and pasted into UK law.
Helen Goodman
Is my hon. Friend concerned that the replacement of the European Environment Agency by national bodies with massive powers would also be handled in that way?
Mary Creagh
My hon. Friend makes an excellent point. We will not simply be able to cut and paste chemicals measures. REACH is the big regulation on registering, evaluating and authorising chemicals. It protects the public and the environment from hazardous substances and it is vital to British jobs, growth and investment. Our chemical industry is the second largest exporter to the EU after cars, selling £15 billion of chemical exports to the EU every year. Leaving REACH could cause market freeze and supply chain disruption to the industry. The Environmental Audit Committee heard from techUK and the defence industries how incredibly concerned they were about that. One in five UK chemicals companies represented by the Chemical Business Association are not waiting for regulatory certainty from the Government, and are already investigating opportunities to set up shop in other EU countries, harming jobs, investment and growth in this country.
The Bill does not protect the citizen and it does not incorporate either the principle of EU law that the polluter pays or the precautionary principle. For those reasons, for the vast destruction of our environmental and social rights, I shall vote against the Bill.
Luke Graham (Ochil and South Perthshire) (Con)
It is good to follow the hon. Member for Wakefield (Mary Creagh), but I want to turn from sun kings and queens to what the Bill is about: giving the House the mechanism to begin the process of withdrawal from the European Union.
Unfortunately, the hon. Member for Bishop Auckland (Helen Goodman) is about to leave the Chamber. I agree with some of the amendments she has suggested, but I would like to ask her why they have not been tabled. I will stand by the Bill.
Helen Goodman
The process is that amendments can be tabled after Second Reading tonight. We cannot table amendments until and unless the Bill completes Second Reading.
Luke Graham
To clarify, there is an amendment on the Order Paper, and I would suggest that some of those provisions should have been included in it.
As many hon. Members across the House have said, we would be open to some of the suggested amendments. The Government have committed to listening to the amendments and reacting to them as the parliamentary process progresses. There have not been many constructive measures from the Opposition, so, with other hon. Members, may I suggest that if they respect democracy, the Bill and the vote of the British people they should vote for the Bill? I say that as someone who voted remain, along with many of my constituents. However, as a democrat, I will support the Bill to make sure that we go through the process.
Clauses 7, 8 and 9 delegate considerable powers to Ministers. On Thursday, many Opposition Members said that the delegation of powers was unprecedented, but I draw their attention to section 32(4) of the Immigration Act 2016, which allows Ministers to
“make such provision amending, repealing or revoking any provision…as the Secretary of State considers appropriate in consequence of the regulations.”
Although provisions in the Bill are wider in scope, they are not entirely unprecedented; I wanted to draw that to the attention of the House. I understand even as a new Member that there is a lot of politics at play in our discussion of the Bill, but it is complicated enough. Our constituents do not want us to blur lines; they want us to clarify them. I would urge Ministers and other hon. Members to decouple myths from facts. There have been people in Henry VIII costume on the lawns outside the House trying to grab airtime, and “Westminster power grabs” creates headlines, but what our constituents really want is for us to honour the vote and get on with delivering the best possible Brexit.
May I suggest to Ministers an example of where that would be particularly helpful? The Human Rights Act 1998 appears to be protected under clause 7(6). Some Opposition Members are thinking about opposing the Bill because it does not transpose the EU charter of fundamental rights, but I am assured that all rights contained in the charter are in the Human Rights Act or other pieces of legislation. To help clarify that point, I urge Ministers to list the protections in current British law, so that we can compare and contrast them with those in the charter of fundamental rights and give assurances to Opposition Members that those rights are protected. We can then take those assurances back to our constituents, who care a lot about this.
The Bill represents the democratic vote of the United Kingdom. As I have said, I support it, but I hope that the Government act on their commitment to listen to learned colleagues in all parts of the House to ensure that substantive measures in the Bill receive the appropriate level of parliamentary scrutiny as the Bill proceeds through the House. If the Government establish a clear framework of strong parliamentary oversight, I hope that we can engage with the detail of the Bill, and finally introduce the substantive Bills that hon. Members and our constituents care about, including Bills on immigration and trade.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Will the hon. Gentleman clarify why his colleagues think it reasonable for the Government to argue that there should not be a border in Northern Ireland—Northern Irish citizens will continue to be able to claim Irish citizenship, which will allow them to become EU citizens—with special arrangements there, but not one of them is arguing for special arrangements for Scotland?
Luke Graham
That is not in the Bill. There is protection for the Belfast agreement under clause 7(6). We can go through that, but Scotland is a completely different situation, as the hon. Gentleman well knows. [Interruption.] Again, if we can complete Second Reading tonight, the Bill will go through subsequent stages, and we can get to substantive debates on immigration, trade, customs, agriculture and the issues that remain and leave voters in my constituency want us to tackle.
Geraint Davies (Swansea West) (Lab/Co-op)
I am pleased to follow the hon. Member for Ochil and South Perthshire (Luke Graham), who knows that people who voted for Brexit did so for a number of reasons. Some of them wanted, and expected, more money, which they were promised—£350 million a week—but now they face a debt of something like £50 billion. Some of them voted leave because they thought that they would still have a job, as we would have access to the single market, but now we know that we will not have unfettered access. Some of them voted for Brexit fundamentally because they thought that we would take back control with enhanced parliamentary democracy and with enhancement and supremacy of our courts.
The Bill does the opposite of what people expected for parliamentary democracy and the enhancement of our courts. What have been referred to as Henry VIII powers—new powers given to Ministers to change legislation as they deem appropriate, without consultation or reference to Parliament—mean that there will be fundamental changes without MPs having a look-in. Moreover, the legislation is drafted so broadly that it does not allow the courts effectively to use the right of judicial appeal to limit and constrain Government. There are no mechanisms to enforce the rights and protections we currently enjoy from Europe.
In practice, this may influence workers’ rights. The workers’ agency directive, which was pooh-poohed by the Government and the Beecroft report, is likely to be ruled out. On the environment, where 80% of the law is decided at EU level, the Government are currently in court under EU legislation in relation to the air quality directive and face fines if they do not fulfil their obligations. Under clause 17 of the Bill, a Minister can simply say, “Well, those EU regulations are inappropriate so we’ll get rid of them.” As for human rights, the fundamental charter is not assured. Any of our rights can be just crossed out by Ministers. On consumer rights, my hon. Friend the Member for Wakefield (Mary Creagh) mentioned REACH. The directive requires all chemical companies to prove that a chemical is safe before they market it. A Minister could cross that out and introduce the American system, which instead requires an agency to prove a chemical is hazardous. That is why asbestos is still legal in the United States and it might become so here. Far from enhancing Parliament, we are open to having our rights and protections stripped away.
The Bill’s aim was supposed to be to cut and paste, or transfer, rights, protections and laws. Nobody is arguing that that should not happen. The question is: can it occur without a massive power grab and so-called Henry VIII powers? I suggest that it can, but it needs four changes. I hope the Minister is listening. Several changes are need to be able to achieve the transfer without the use of those draconian powers. The changes are: first, to ensure that the Bill enshrines the continuation of rights and protections in EU law; secondly, to have enforcement mechanisms in place for those rights which will be taken away when the EU institutions are taken away; and thirdly, to state in the Bill that the measure is not intended to impact on human rights and to ensure that, in any case where our rights and protections are challenged, they are referred to a Select Committee process. Most measures will be technical, but when there is a challenge to basic rights and protections we need something akin to a turbo-charged European Scrutiny Committee. I hope the Secretary of State is listening. That Committee can currently refer for debate any new EU legislation. That right should be enhanced, so that measures can be referred, amended and voted on here.
Fundamentally, we are talking about British values. The Prime Minister talks about British values and there are no more fundamental British values than parliamentary democracy and the rule of law. They are both unnecessarily under threat. If the Bill goes through as currently drafted, it will be a Trojan horse for well-armed Brexiters to get rid of parliamentary democracy and the rule of law as we know it. That is why they need to be disarmed.
There is no justification for the way the Bill is currently drafted. It should be taken back in its entirety. It can be brought back in October to cut and paste the particular safeguards. My own view, as hon. Members will know, is that as people voted for Brexit in good faith for a number of reasons that have not now materialised, they should have the right to have the final say on the exit package, to judge whether it stacks up against their reasonable expectations. That is what democracy is about. The Bill is about the destruction of democracy and I will vote against it wholeheartedly tonight.
Huw Merriman (Bexhill and Battle) (Con)
It is a great pleasure to follow the hon. Member for Swansea West (Geraint Davies).
I believe that this is the first speech I have made on Britain leaving the European Union. The reason for my remaining unusually silent in this place is that back when the referendum was announced, I took a decision to not go to my constituents and tell them which way they should vote, but to try to remain impartial and provide them with information on both sides of the argument. I did so as a point of principle. I took the view that, having asked people to vote for me in 2015 so they could have a referendum, I wanted it to be their decision as to how their vote should be determined. I wanted to bring them information. I did so by holding 10 debates across the constituency and by going to 25 schools in the final week. I was, of course, very willing to give my own view as to which way I was going to vote, so at 9.59 pm on referendum day I announced that I had voted to remain. I then found out that 60% of my constituents disagreed with me, because they had voted to leave.
Having tried to provide information on what article 50 would mean in the event that we left and what the Prime Minister’s reformed EU would look like if we remained, I took the view that I was duty bound to follow the mandate given to me by the people. That is why I voted, along with 498 Members, to trigger article 50. Having said that I would follow that instruction, I am now duty bound to become greatly and passionately interested in the shape of our EU departure. I very much intend to do that.
I am still drawn to the Norwegian argument that those on the remain side used as a reason why we should stay. We do not want to be a member of the single market, but be unable to influence its shape and have to pay into its obligations. I still find that an attractive argument and that is why I now advocate leaving the single market and the customs union. I firmly believe that the way we can shape the new future is not by trying to look back at the past, but by forging a brand new future.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
Does the hon. Gentleman not then agree with the Scottish Conservative leader, Ruth Davidson, who said on 7 September in The Spectator that the UK should stay in the single market?
Huw Merriman
The hon. Gentleman will have heard me when I said that I believe we should leave the single market. I can pinpoint the particular reason. If we are going to follow the instructions our constituents gave us, at least let us be bold, ambitious and look outside the club of 27 member states who, frankly, have not allowed some of the poorest countries to trade with that block. We should now set our sights on helping those countries and forging links with them in a way that has not been possible thus far. There is, therefore, an ethical reason for leaving the single market and the customs union, and for forging a new way forward.
As one of the 498 MPs who triggered article 50, I look at the approximately 150 MPs who were not willing to do so. I can perhaps understand why they are not willing to support Second Reading. The Bill will preserve all EU law when we leave the EU. The 150 MPs do not wish us to leave the EU, so I can see, logically, why they are not willing to vote for Second Reading. I would, however, just make the point that it was the same ballot box that returned them to this place that they choose to disregard when it comes to the referendum. That leaves us with the remaining 498 MPs. We hear that many of them will not support Second Reading this evening. I can understand those who always wished the UK to leave the EU not wanting to retain EU laws but to get on with repeal straightaway, but I have not heard any voices on either side of the House advocating that position. I am working on the basis, therefore, having heard of no other mechanism for retaining EU law on day one, that there is no alternative to the Bill.
Why, then, will hon. Members not vote for the principle of the Bill on Second Reading? I am saying not that the Bill cannot be improved but that the Government will listen to ideas on how it can be improved—I can testify to that having had a conversation with the ministerial team today and fixed a meeting to walk through some of those improvements. On clause 6, for example, on the interpretation of EU law following departure, I have concerns that the lower courts will be required to follow retained EU case law and retained EU general principles. It appears that they will not be able to depart from EU case law but that the Supreme Court will. If a decision is taken by the lower courts on EU general principles, however, will the Supreme Court be able to depart on that basis?
There are issues to iron out, therefore, but notwithstanding all the intelligent arguments we have heard from lawyers in this place, the prime driver for me is the need to make suggestions and make this work. It behoves us to make it work. In a previous job, I took many cases through the court process, including the Supreme Court, and the more assistance we can give the Supreme Court with interpretation and the smooth administration of law, the greater the benefits we will all reap in the future.
But that is for another day. Tonight is all about whether we are willing to see all preserved EU rights and laws retained on day one, so as to deliver a smooth departure, retain the rights that many hon. Members want retained and ensure that we make a success of our leaving. I was willing to listen to other arguments, but I have heard none advanced, apart—I am afraid to say—from pure politics. I do not believe that our constituents, regardless of which way they voted, want politics on this subject; they want us to get on with the job and deliver a successful Brexit, not just for them but for the country and world at large.
Hannah Bardell (Livingston) (SNP)
Mr Deputy Speaker:
“the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened.”—[Scottish Parliament Official Report, 12 May 1999.]
Those were the words of Winifred Margaret Ewing, elected to the House of Commons 50 years ago this year, and more fondly known as Winnie and, to her EU friends, Madame Ecosse. To this day, Winnie is the only parliamentarian of these islands to have been a Member of the Scottish, British and European Parliaments, and she will be the only person who will hold that accolade.
It is almost 20 years today since Scotland said yes to a Scottish Parliament with devolved powers under a settlement that stated that everything was automatically devolved unless it was explicitly reserved. Despite what was said earlier, those powers were not notional. As the First Minister of Scotland, Nicola Sturgeon, rightly said in her speech this morning, this Bill
“threatens the very principle on which our Parliament is founded”.
In its current form, the Bill is a reversal of devolution.
Although I am a pretty positive person, I am struggling to find light among the Brexit process. After a summer of meetings with businesses and trade bodies in my constituency and across Scotland and the UK, aimed at understanding their hopes and fears about Brexit, I find it hard to see good in any of it. The retail sector in my constituency employs a lot of EU nationals. Let me take the insurance and aviation sectors as an example.
Dr Philippa Whitford (Central Ayrshire) (SNP)
As my hon. Friend knows, I have an airport and an important aerospace cluster in my constituency. Is she not concerned about the loss of open skies and the European Aviation Safety Agency? We might not be able to pass the engines, but perhaps that does not matter, because we will not be allowed to fly anyway.
Hannah Bardell
I share my hon. Friend’s concerns, and I am sure she shares those of the insurance sector, which cites aviation as a relevant example because national airlines based in any EU country require a range of specialist insurance cover. Most of that is a mandatory requirement for operation. The UK insurance market is the only location with the specialist aviation insurance knowledge and financial capacity to provide the full coverage for all the risks faced.
Hannah Bardell
I will not at the moment. I am going to make some progress.
To put it simply, planes will not be able to take off, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) identified.
There is concern that the UK Government might use clause 8 to trigger article 127 of the European economic area agreement, immediately ripping away the UK’s access to the free movement of goods, people, services and capital. As the days pass, the fear and concern heighten. Frances O’Grady, the general secretary of the TUC, said this morning—she was adding to the list of Brexit superlatives—that the Conservative Government were headed towards a “kamikaze Brexit”.
In a single act of complete recklessness, the Government are pressing ahead with this deficient Bill without carrying out a proper economic analysis of any economy across the UK. The people in businesses I have spoken to do not want to fall off a cliff before new trade deals can be agreed. They cannot afford to crash out of the EU or to fall back on WTO rules, which the CBI president said would open a “Pandora’s box”.
The gap between any transitional period and the start of any trade deal is also a real threat. Agriculture, fisheries and the environment are just some of the areas devolved to Scotland that will be affected by the Bill. The Fraser of Allander Institute has shown that a hard Brexit could cost Scotland’s economy and its GDP up to £10 billion and 80,000 jobs. That is almost the entire number of people in my constituency. The Scottish Government did try to work for a compromise, presenting their proposals in “Scotland’s Place in Europe”, but they did not even receive a decent response.
Hannah Bardell
Not at the moment; I am going to make some progress.
The former Prime Minister David Cameron did not allow his civil servants or advisers even to write anything down before Brexit, and the Brexit Secretary admitted to the Select Committee that there had been no proper assessment of the economic consequences if there was no deal. What a reckless and incompetent way to run a Government or a country! I know that some of the magnitude of this is hard to comprehend, but to go to the people of this country with no proper impact assessment and no proper detail is absolutely scandalous. The Conservative Government pledged to produce a repeal Bill to
“allow a smooth and orderly transition as the UK leaves the EU”,
but this Bill seeks to undermine the devolved settlements and offers no guarantees to the devolved nations on the protections of their powers.
Michel Barnier told a press conference recently that there had been no “decisive” progress in talks with the UK at the conclusion of the third round of negotiations. While the Government are faffing about, time is not on the side of people, businesses and our industries. Perhaps even more damaging than the tardy approach to the negotiation of a transition is the admission that the Government have turned down countries wishing to strike trade deals after Brexit because they—the Government—do not have the capacity to negotiate them. Furthermore, since the Government’s approach to immigration was leaked, there is now a real risk that the transition period could be under threat.
Those in the legal profession have also raised concerns. Lord Judge, the former Lord Chief Justice, has warned that Parliament faces a legislative tsunami without the time to scrutinise legislation properly.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
My hon. Friend prays in aid Lord Judge, but it is fair to say that he is not the only senior magistrate to have problems with the Bill. Referring to clause 6, Lord Neuberger, the outgoing president of the Supreme Court, has said that if the Government
“doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for…making the law when parliament has failed to do so would be unfair.”
He is right, is he not?
Hannah Bardell
Yes, he is.
The Government had to be dragged through the courts even to give Parliament a say on the triggering of article 50. What hope have we that we will be able to scrutinise properly the 19,000 laws and regulations that will be coming back from the EU? Last week the Scottish Government announced an ambitious and inclusive programme for government that put carbon capture back on the table after the failure of the UK Government in that regard, and committed to establishing a Scottish investment bank.
Hannah Bardell
The UK Government should be delighted, but what have they been doing? They have been doing Brexit—just Brexit, and nothing else—and they cannot make progress with that. That is what doing the day job really looks like, and as we get on with the day job in Scotland, Westminster will be bogged down in nothing but Brexit.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Mr. Graham, you have already spoken. If the hon. Member for Livingston (Hannah Bardell) wishes to give way, she will indicate that to you, but I certainly do not need you to be hanging on and on your two feet for the rest of her speech.
Hannah Bardell
Thank you, Mr Deputy Speaker.
This Bill threatens the very foundations and transparency of our democracy. There are voices of agreement and consensus around the Chamber, and it is incumbent on us to work together when we can find agreement, but the Bill, and the Tory Government’s antagonistic approach, give little space and opportunity for any collaboration. With no clear answers to the issues of EU nationals’ rights, with the charter of fundamental rights and single market membership under threat, and with no detailed economic analysis of the effect of the UK’s leaving the single market, the Bill is a wrecking ball for British democracy and the cross-party working and consensus that created the Scottish Parliament.
The Government cannot hide behind this “what the people voted for” line, because the reality is that no one really knows what they voted for. There was no White Paper, there was no positive proposition, and there was no detail—nothing was written down. Many who voted for Brexit are now full of regret and frustration because they were sold a pup. We will not stand by and support this Bill. We will not give it a Second Reading, because two decades after Scotland voted for a Scottish Parliament, and giants of Scottish politics such as Donald Dewar and Winnie Ewing ushered in a new era of positivity that has benefited everyone in Scotland, the Bill is the biggest power grab since devolution. We in the SNP will not stand by and allow Scottish democracy and our Parliament’s powers to be eroded.
Ms Nusrat Ghani (Wealden) (Con)
It is an honour to follow the hon. Member for Livingston (Hannah Bardell), who gave an interesting speech.
Without the iconic and much-loved bongs of Big Ben, the Palace of Westminster might appear to be diminished, but the European Union (Withdrawal) Bill will ensure that this Palace is more sovereign and more accountable, with or without its hourly chimes. The Bill will restore this nation’s sovereignty, the supremacy of this Parliament and the self-determination of the British people. The final word on law will be ours, and I am happy to trust the judgment of our Supreme Court rather than that of the European Court of Justice. The British people will ultimately be entirely in control of the direction of our country. If they do not like what they see here in Parliament and do not feel represented by their MPs, they can vote us out. That is not the case for unelected, unaccountable Eurocrats.
This Bill is the logical next step in leaving the EU—what the public have trusted us to do. The key point of this Bill is to provide certainty as to how the law will apply after we leave the EU. This is an unprecedented period in our history, which is why so much has been, and will continue to be, debated, but to vote against this Bill is purely political game playing and ignoring the will of the British public. The public have a right to ask objecting Members who argue against converting EU regulations and law into domestic law on exit day where their objections were when the laws were enacted in Brussels and enforced on us in the first place.
The Bill maximises stability and certainty, which is what our economy needs and what our businesses require and deserve. The Bill ensures that consumers have clarity about their protection, that employees have clarity about their rights, that businesses have certainty, and, fundamentally, that rights and protections are enforceable through the UK courts, which are renowned the world over.
Many Wealden businesses and farms from Hailsham, Uckfield and Crowborough have raised their concerns over EU red tape. Many Wealden businesses are small. Like the national average, only 5% export to the EU, but 100% are caught by red tape, which makes setting up, recruiting and exporting more difficult. Brexit and this Bill start an opportunity to create business and farming environments that work for all businesses, whether they are global or just local.
I impress on the Government the need to consult business representatives fully. In Wealden we have dozens of vineyards, many farms and cutting-edge science and tech businesses. They should be consulted and their concerns should be addressed. Consultation is key in these exciting times ahead for the UK outside the EU.
Brexit presents us with not only an opportunity to become a sovereign nation once again, but countless opportunities beyond our own waters. Negotiating as one country, we can strike free trade deals unhindered by the need to get the signature of 27 other countries. We will be able to agree our own terms with not just our friends in Europe, but the ambitious entrepreneurialism of the rest of the world. I cannot be the only Member who believes that the patronising, out-of-touch and out-of-date European elites need to get over their obsession that the future lies solely in western Europe. In reality, it is Asia, Africa and South America that are brimming with the skills, ability and talent that will shape this century. We have an exciting opportunity to trade in goods and expertise, and to help to share prosperity in not only this country, but these new emerging markets.
I seem to have an extra moment to speak, so I shall also touch on Michel Barnier, as the hon. Member for Livingston referred to him. Michel Barnier’s recent comments about our moral and legal obligations to support development in third-world countries has not gone down well in my constituency. As one of only five EU member states to meet the UN’s 0.7% foreign aid spending goal, and just one of four to meet NATO’s 2% spending target on defence, we will take no lectures from Brussels about supporting those less fortunate than us. My constituents want to know who are Brussels to talk to us about supporting developing nations when the common agricultural policy has for so long immorally and unfairly held African farmers back. Brexit allows us to treat Africa as equals and enables people there to decide their own destiny without financial discrimination from European elites.
Opportunities abound with Brexit. Although the media narrative and some Opposition Members suggest that it will be doom and gloom, I do not see things that way. I admit that some of what we hope for will be difficult, but I will never accept judgment for being ambitious for my country.
Ms Ghani
I am so sorry; I have been told that I need to crack on because of the time. I do apologise.
The Bill allows for an orderly exit from the EU. A vote against it is a vote for a chaotic Brexit, and such a vote would be irresponsible and undemocratic. That is not what the country voted for. Our job as parliamentarians is to deliver a smooth exit from the EU. I will be supporting democracy and respecting the will of the British people by supporting the Bill tonight.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
I congratulate the shadow Secretary of State, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), on the common-sense position that Labour has adopted on EU withdrawal and on this democratic travesty of a Bill. We certainly look forward to seeing him in my constituency, where his appearance next month is eagerly awaited.
Following the referendum, it is sadly clear that we will end our formal membership of the European Union. The question is how and what the future holds. As far as our country’s future relationship with our neighbours is concerned, Brexit should never become synonymous with “break it”, which, thankfully, only a minority of people want. There has to be a transitional agreement with the EU, as it will be impossible to reach a comprehensive deal at all levels by the end of March 2019. Common sense says that such an agreement should include our remaining in the single market and the customs union. The Prime Minister’s policy stance means that the Bill is inimical to that common-sense course. That is the effect of clause 9, and that is a good, substantial reason to oppose the Bill.
The Government have not yet allowed a meaningful vote in Parliament on the terms of our withdrawal before the Bill implements those terms. That is another good, substantial reason to oppose the Bill. I voted consistently against triggering article 50 in the absence of assurances about that, about the rights of EU nationals who are already here and of our citizens on the continent, and about much more besides.
Like the right hon. and learned Member for Rushcliffe (Mr Clarke), I did not vote for the referendum legislation in the first place, because I thought it was a thoroughly bad idea, as it is certainly proving. I certainly will not vote to give this dreadful Bill a Second Reading tonight, but I will respect the referendum result by voting for the reasoned amendment. This flawed piece of legislation, with its flawed approach, needs to go back to the drawing board and return in better shape in October.
I will not dwell on clause 7 or any other clauses for too long—they have been well and truly dissected by many good speeches already—but I will show my constituents, to whom I will have to explain my votes, that I have indeed read the Bill by saying that when I got down to clause 7(2)(f)(ii), my jaw, which I had already prised off the ground, bounced off terra firma again. I will explain to my constituents why. To take one example, that clause proposes—in a modern parliamentary democracy, not a feudal, despotic monarchy—that a Minister of the Crown will have the power to issue regulations, which could not be changed, to correct parts of law that he or she does not consider
“it is appropriate to retain”.
And so the Bill goes on. That is not just profoundly undemocratic; as hon. Members have already pointed out, that approach to vesting such sweeping powers and discretion in this particular Executive flies in the face of the message sent by the British people in June.
The Prime Minister called that opportunistic, unnecessary election, confident that it would deliver her an increased majority, a highly personalised vote of confidence and a mandate to do what she pleased. But she was rumbled and found wanting—it did not. The country said, “No way” to “My way or the highway.” Our country would certainly not want us to vest in a minority Government the powers in the Bill, which might affect so many lives with minimal parliamentary oversight. If we do grant them, people will ask us—they are already—what is the purpose of electing MPs in the first place.
Let us take a look at some of the Ministers of the Crown whose sparkling judgment and impeccable intentions we are asked to trust. We are told that they would include in a blizzard of regulations only technical amendments and would not try to slip through anything more fundamental or controversial. As examples, let us take the right hon. Member for Surrey Heath (Michael Gove) and his one-time friend then victim, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson). At the very top of the tree, our people gave their verdict in the general election on the Prime Minister’s powers of judgment. Every fortnight, there is a very funny column in Private Eye from the headmistress of “St Theresa’s Independent State Grammar School for Girls (and Boys)” now incorporating the “William III Orange Academy”. Just where are the two right hon. Gentlemen I mentioned who gave such a tour de force of alternative facts with bravado during the referendum? Well, they are back at the heart of the staffroom. What successful school rewards bad behaviour? It would be in special measures. What governing body would put the sort of trust that the Bill asks for in such a headmistress and her senior—I use the term loosely—“leadership team”?
Ian Paisley
The hon. Gentleman always makes good arguments, but is he actually telling us that we should just continue to accept European directives over which we have absolutely no say whatsoever? At least we can elect and change the Government here.
Paul Farrelly
The Bill asks us to transfer to the Executive what the hon. Gentleman considers a flaw without this Parliament having much of a say in what may happen. There are good reasons to oppose the Bill on the basis of clause 9 and the lack of a meaningful vote in Parliament—the Bill would allow the Government to get around that.
To continue the school metaphor, the Bill is not only unsatisfactory and in need of improvement, but wholly inadequate. The Government need to go back to the drawing board and rethink their approach. There is no mandate for a hard, cliff-edge Brexit or for shredding long-won relationships with the other 27 countries of the European Union, nor is there a mandate for a hard transition. There is certainly no mandate to hand the powers in the Bill to a minority Government and a caretaker Prime Minister. I hope that my colleagues and concerned Members on both sides of the House will vote against the Bill. Not to do so would give the Government a strong signal that they can get away with anything they like.
Charlie Elphicke (Dover) (Con)
I supported the remain side of the argument in the referendum, but my constituents listened politely to my advice and then two thirds of them voted to leave. A majority in this country voted to leave, so we have been handed instructions by the British people to leave the European Union and we need to respect the referendum result. This Bill is a key part of getting that ship under way. It is a process Bill that simply writes European law into our domestic legislation.
There are those who now say that we do not have enough scrutiny. However, it is strange that the European Communities Act has allowed all European law straight into our system since 1972 without any scrutiny in this House whatsoever. They did not complain about that, but they are suddenly worried about scrutiny. If we scrutinised and debated each and every one of the thousand statutory instruments and called them all in under the prayer motion procedure, we would do nothing between now and Brexit day but discuss the intricacies of writing bits of European legislation into our domestic legislation. I cannot speak for anyone else, but none of my constituents has asked me to do that. My constituents have not raised their determination for us discuss the minutiae and process of putting European legislation into our legislation. Has anyone else had a constituent say, “Between now and Brexit day I want you to discuss getting European law into our legal system”? I very much doubt it.
My constituents have asked me, “How can we ensure that we do not have to pay too much money? Does the EU have a legal case to demand money from us for the Brexit divorce bill? Does it have a case to demand £50 billion or whatever it is from us?” So I spent some time doing some research. I looked at the matter carefully with the eminent Martin Howe, QC, and we concluded that the EU has no claim at all as a matter of law. In fact, a compelling argument suggests that we are owed €10 billion by the EU for the return of our stake in the European Investment Bank, but we do not hear about that from the Opposition. We do not hear them making the case for scrutiny of the divorce bill to try to get some taxpayer value—not a bit of it.
Then, my constituents raised with me their concern about whether there might be queues on the roads to Dover and problems with trade when we leave the European Union, to which I say it is important that we are ready on day one, and that we are prepared for Brexit day, deal or no deal. That is a prime concern of my constituents, because gridlock at Dover means gridlock for the UK economy as a whole.
It is very much in the national interest that we focus on being ready on day one, but we do not hear about that from the Labour party, either. We do not hear any constructive ideas whatever about how we can be ready on day one, how we can make a success of Brexit or how we can ensure that we do not have to shell out too much taxpayers’ money. No, what the Labour party wants to do is scrutinise process, because it does not have a clue.
The people of Britain clearly said we should leave the European Union, and they gave a clear instruction that they want to end uncontrolled EU immigration. That means that, yes, we have to leave the European Union’s internal market. They gave a very clear instruction that they want our trade policy to be made in Britain, not in Brussels. Yes, that means we have to leave the customs union, but it does not mean we cannot discuss a free trade agreement with the European Union, and that is what we should be focusing our time on here. Rather than discussing process or the scrutinising of laws that already exist just so they can be written into our legal system, we should be discussing how we will have relations with the European Union in the years after we leave, because that is what matters to our constituents.
The prosperity of our people, the success of our businesses and the lifeblood of our economy is about making sure we foster international trade not just with the European Union but with the wider world. That matters because 80% to 90% of all global growth in the years to come will not come from Europe. Those are not my figures, and it is not my argument—they come from the European Commission in reply to questions raised in the European Parliament.
Daniel Kawczynski
Clearly we want to ensure a reasonable win-win trade deal with the European Union, but is my hon. Friend aware of reports that, if we fail to get that deal and we go to WTO terms, our Exchequer will benefit by £13 billion a year from the taxes charged on imports from the European Union?
Charlie Elphicke
My hon. Friend makes a powerful argument. There are those who say that we have to beg Europe for a deal. Last time I looked, the European Union had a £100 billion surplus on trade in goods with the United Kingdom. If there were tariffs, European exports to Britain would be hit by £13 billion, whereas our exports to Europe would be hit by only £6 billion. That shows why it is in Europe’s interest to do a free trade deal, and why it would be an economically illiterate act of self-harm by the European Union not to want to do a trade deal. If anything, a trade deal is more in the EU’s economic interest than it is in ours.
Those are the hard numbers, and that is where the House should be focusing. If we want scrutiny, we should scrutinise how we can reduce the divorce bill, ideally to nothing. We should scrutinise how we can make sure we have a positive relationship with the European Union in the years to come, how we can have free trade, how we can have trade across the rest of the world, and how Britain can be positioned to grow so that our sons and daughters can have the kind of future that they expect us to build for them. That is why we need to approach this positively and thoughtfully, and it is why we need to apply scrutiny to the things our constituents care about, rather than process.
Hywel Williams (Arfon) (PC)
I apologise for missing the first few minutes of this debate.
It is a pleasure to follow the hon. Member for Dover (Charlie Elphicke), who is occasionally my hon. Friend. I remind him that gridlock in Dover is the same as gridlock in Holyhead, Ynys Môn and across north Wales, which causes gridlock for the English economy because so much traffic passes that way. That subject has been even less discussed than gridlock in Dover.
I have only one substantial point to make, which is that the Bill threatens the constitutional settlement between Wales and England, and it seemingly does so almost as an afterthought: Brexit is the issue but, by the way, we are unravelling the last 20 years of careful and moderate devolution, irrespective of the views of the majority of people in Wales, as expressed in two referendums.
I am referring not to the rushed duplicity of the June 2016 referendum, but to the two substantial referendums in Wales specifically on the devolution issue, after decades of the most detailed debates and campaigning. This was not change as an afterthought, when the consequences of the decision on Brexit are beginning to become slightly clearer; these were referendums on devolution itself. Perhaps I need to remind Government Front Benchers of the results of those referendums on the sort of government we want in Wales and with what sort of powers. The first was carried narrowly in 1997 and the second, on a modest extension of powers, was carried overwhelmingly in 2011, with the support of all parties and with the no campaign having degenerated into an obsessional, deluded and irrelevant rabble—I am sorry to see that the hon. Member for Monmouth (David T. C. Davies) is not in his place to leap up to correct me.
That is the status quo that this Conservative Government either seek to overthrow or might overthrow by mistake, as carelessly as they might toss a cigarette into a pail of petrol. They will argue, correctly of course, that the Brexit referendum is the superior authority to the devolution referendums, but I take that argument, as will many people in Wales, as exposing the true nature of the relationship between our two countries. It is one not of respect, but of heedless and thoughtless power of one over the other. The “Encyclopaedia Britannica” was wholly right in the index of its first edition when it said “For Wales, see England”.
The current devolution settlement is framed in the context of the UK’s pre-existing membership of the EU. By facilitating leaving in this way, the Bill, as drafted, redefines the UK constitution by default; it creates a new body of law and gives Ministers power to change law as they see “appropriate”, as we see in clause 7(1). The Bill intercepts and retains the returning EU power and funds, and maintains what are the responsibilities of the Welsh Assembly, such as agriculture and convergence policy—as London matters. The Bill amends the devolution settlement so that the devolved Governments will have to accept whatever the Minister here decides, including in respect of the provisions of the Wales Act 2017, which has not even come into force. Many hon. Members who spent a great deal of time on that Act may ponder why on earth we bothered.
I wish to go off on a slight tangent now about the offer or suggestion of having a triage system. I took part in a system that was similar but not exactly the same—hon. Members can look this up if they please—when we looked at the powers being transferred to the Welsh Assembly before legislation gave it those powers. Under this legislative competence order system, members of the Welsh Affairs Committee sat to ponder various bits of legislation and the various powers that would be transferred to Cardiff. This led to some powers of great importance, such as those relating to mental health, being passed with scarcely a murmur, while other far more contentious matters, such as those relating to the Welsh language, were discussed endlessly. They were eventually agreed to, as we had expected, but it was delayed and delayed for political purposes.
We have been told that the Bill is a “technicality” and a “temporary necessity” and we are asked to extend our trust, but I would say that we are being asked to extend our credulity much too far. Both the Welsh and Scottish Governments have said that they cannot grant legislative consent to the Bill in its current form. I have written to the Welsh Secretary asking him what will happen if consent is withheld by the Welsh Government and the Scottish Government. My hon. Friend the Member for Dwyfor Meirionnydd (Liz Saville Roberts) asked him about this issue again at Welsh questions last week, but we are yet to get a clear reply. So this is how a constitutional question lurches towards a constitutional crisis. We should avoid it, and it is avoidable if the Government would be more open. Their manifesto in the 2017 election promised not to “devolve and forget”. Through the incompetence and arrogance, I fear that they are forgetting devolution, and we on the Plaid Cymru Bench will oppose their folly.
Jack Brereton (Stoke-on-Trent South) (Con)
Stoke-on-Trent voted overwhelmingly to leave the European Union: the proportion was higher than in any other city, with 70% of people voting to leave. That is why I will vote to support the Bill tonight.
The people of Stoke-on-Trent South voted for me and the Conservatives for the first time in 82 years because we demonstrated our trust in the public’s judgment in voting to leave and are the only ones with a strong, credible plan to deliver Brexit successfully. In electing me to this place, my constituents were clear in their rejection of the previous Labour MP and his attempts to disrupt and delay the Brexit process. My constituents who voted to leave in the referendum did so for a number of reasons, including economic, social and political ones, but the clear shared message from the general election was that constituents in Stoke-on-Trent South do not want to be worse off as a result of our leaving the EU. There is a feeling in Stoke-on-Trent of being left behind, with the EU remote and distant. People struggle to see the economic benefits. I am determined to be a strong representative of what my constituents voted for.
In leaving the EU, we must maximise new opportunities in Stoke-on-Trent and support our businesses to improve skills and jobs and boost prosperity. Critical to that is ensuring that we make a success of leaving. We must create some certainty and get on with putting forward the necessary legislation. What I hear from businesses in Stoke-on-Trent South is a need for certainty. The Bill will create an orderly processes to move the existing EU legislation that makes up part of the UK legal system so that it is under Parliament’s authority. As my right hon. Friend the Secretary of State for Exiting the European Union said on Thursday, it will ensure that on the day we leave, businesses will know where they stand, workers’ rights will be upheld and consumers will remain protected.
To delay or disrupt the process unnecessarily would be hugely damaging for our economy, businesses and jobs in all communities throughout the country. To those in the House who wish to disrupt the Bill today, or even to stop altogether the process of our leaving the EU, I repeat what several of my right hon. and hon. Friends have said: there will be further opportunities to improve the Bill in Committee. Suggestions about the need for amendments should not stop the Bill at this stage. I ask them to think of the impact on their constituents and on our country, because if the Bill is not allowed to progress to Third Reading, we will put at risk jobs and our future economic prosperity.
Businesses and my constituents want the Government to get on with the job and to ensure that we have certainty and can deliver a successful Brexit deal. Whether someone supported leave or remain is insignificant: the British public voted overwhelmingly to leave, especially in constituencies such as mine, Stoke-on-Trent South. We must respect the democratic result and work in the national interest. What matters now is that we in this House are seen to be doing everything possible to make a success of Brexit, and that we reduce the chance of disruption to our economy and seize on the opportunities that come from our leaving the EU. We must ensure that we give Ministers the ability to do that in the most efficient and effective way possible.
It is right that we scrutinise the legislation effectively, but we must also recognise the need for secondary powers to adjust EU legislation to fit into the UK legal system and to make sure it remains relevant from the moment we leave. There has already been much debate about the use of such powers, but they are necessary to make the process workable. As colleagues have said, they are well-established practices and will remain within Parliament’s oversight, and there will be appropriate safeguards to limit their use.
I am optimistic about our future after we leave the EU, which the Bill will help to facilitate. As with any change, there is always some initial uncertainty, but through the Bill we can help to provide confidence about our economic future. From that point, the Government can get on and deliver the more global-trading Britain that we want to see. Businesses in my constituency share those thoughts, although some may have initial trepidation. By and large, firms in Stoke-on-Trent—especially those across our manufacturing sector—see the significant opportunities that can be realised both in striking the right path outside the EU, regaining control of our own destiny and growing our trading opportunities around the world. Only by voting in favour of the Bill tonight can we ensure that the Brexit process will move forward successfully, without delay, and guarantee a stable future outside the EU.
Stephen Kinnock (Aberavon) (Lab)
It is a pleasure to follow the hon. Member for Stoke-on-Trent South (Jack Brereton).
Last June, the British people voted to leave the European Union. It was an outcome that I campaigned against, but it is a decision that I fully accept and respect as a democrat. That is why I voted to trigger article 50, and I have spent the past 15 months considering how to make Brexit work. It is precisely in that vein, driven by a desire to defend and advance our national interest and to enact the will of the British people, that I have risen today to urge hon. Members to decline to give this Bill a Second Reading.
This Bill frustrates the will of the British people and it fails on its own terms. Brexit was supposed to be about Britain and her sovereign Parliament taking back control. Whatever a vote for Brexit meant, it was surely not a vote for the degradation of our fundamental constitutional values. The first principle of our constitution is parliamentary sovereignty under a constitutional monarch. That means that it is Parliament, not the Executive, that determines the rules and laws that govern this country. The Bill seeks to turn that fundamental principle on its head. Without substantial amendment, this Bill will usurp the sovereign power of this House, giving Ministers the absolute powers of feudal lords, and the Prime Minister the power of a 16th century monarch. It would emasculate this House, giving the Government, who were denied a majority in this House at the ballot box just three months ago, unaccountable power. As Lord Acton famously remarked,
“Power tends to corrupt, and absolute power corrupts absolutely.”
The relationship between the legislature and the Executive works only if it is one of equals. This Bill, if passed in its current form, would fundamentally undermine Parliament’s ability to hold the Executive to account and to apply the checks and balances that are the lifeblood of our democratic processes and institutions.
If this Bill does pass tonight, we must work together across the Floor of this House to fix it. First, we need a substantive impact clause, which would codify and formalise the promise that this Bill will make only technical changes and would mean that substantive rights and protections originating in EU law could not be removed without a vote in Parliament. Secondly, we need a limitation on the use and scope of the discretionary powers in the Bill—this will likely take the form of the “necessary and proportionate” requirement—and a protection for substantive rights. Giving Ministers the power to determine what is “appropriate” is an inadequate safeguard, as it hands Ministers absolute and unaccountable power that they need justify to no one.
Thirdly, we need an enhanced scrutiny requirement. This could take the form of the “sift and scrutiny” Committee that has been proposed by the Hansard Society. Failing that, the task could be delegated to the European Scrutiny Committee, with the aid of a beefed-up explanatory memorandum. That type of amendment is required so that this House has the power to determine what will be done by statutory instrument, what by the affirmative principle, and what by the whole House.
Fourthly, there must be an institutional parity clause. Without UK institutions to take on the job of EU bodies, we will see fundamental rights removed by the back door, having been rendered unenforceable. Fifthly, we need proper explanatory statements from Ministers. That would be a further layer of protection; it would mean Ministers having to sign an explanatory statement whenever an instrument was made under the Bill, stating that it was not intended to impact on substantive rights and protections.
Lastly, but by no means least, we need a clause to enforce the principle of presumed competency for devolved institutions. There is presumed competence for devolved institutions when it comes to enforcing EU policy at present, so competency for these matters should be transferred not to Whitehall, but closer to the people through our devolved institutions.
Amendments to cover those six areas would produce a Bill that protects the sovereignty of this House and gives back control to the people of this country, and not simply to those around the Cabinet table, but the Government have shown absolutely no willingness even to consider any such amendments. Rather, they seem determined to impose a tight time limit on Committee stage, in an attempt to ram the Bill through before anyone can appreciate its full implications.
As Lady Macbeth muses,
“What need we fear…when none can call our power to account?”.
Lady Macbeth knew that as long as her husband was on the throne, they would escape punishment for their crimes, because there was no check on their power. This Bill seeks to strip Parliament of its sovereign power, create a Cabinet of kings and transform the Floor of this House from the beating heart of our democracy into a spectators’ gallery, turning us from legislators to bystanders, wholly dependent on the benevolence of Ministers. Let us make no mistake: this Bill is not about delivering the will of the people; rather, it is about gagging our democracy and this House by way of a false discourse. It is a silent coup d’état, masquerading as a technical necessity. It is for that reason that I urge us all to decline giving the Bill a Second Reading, and the Government to return with a dramatically altered Bill that respects this House, our constitution and the will of the British people.
Paul Masterton (East Renfrewshire) (Con)
I am grateful for the opportunity to speak this evening. The Government must carry out the will of the British people, but we must remember that the people are not united. As the MP for East Renfrewshire—a constituency with one of the highest remain votes in the country—I will always put my constituents’ views first. Their concerns—indeed, my concerns—about what leaving the EU means for their businesses, families and futures will be heard and respected. Although I am not yet convinced that my remain vote was the wrong choice, I, like the vast majority of my constituents, do not seek to overturn or obstruct Brexit. We want it to work. It needs to work. We want to see practical, pragmatic, reasonable solutions to complex issues.
That is why I am pleased to see this Bill before the House today—a Bill that, when boiled down to its most fundamental principle, seeks to ensure that the positions at one second to midnight before we leave the EU and at one second past midnight after we have left are, so far as possible, the same. Whatever anyone’s view on Brexit, that surely can be seen as good and necessary. We cannot wake up the morning after we have left the EU with gaping holes in our statute book, and with no one knowing what the law is, what regulations apply or what protections exist. The Government can count on my support tonight as a result.
The aims and objectives of the Bill are clear, and they are right. However, as we move forwards, Ministers must not be deaf to the issues raised in this debate from across the House, particularly those concerning the delegated powers framework, which other Members have explained in far more detail and with far more eloquence than I could. The Bill is good in intent and purpose, but it is not perfect. The right thing is to work to amend it, not collude to wreck it.
I was 13 when the Scottish Parliament opened. Devolution is all I have known. Our departure from the EU gives us a golden opportunity to deepen and enhance the existing devolved settlements. That is what was promised, and it must be delivered. Just as the EU that we are leaving is not the same beast as the European Economic Community that we joined, so the United Kingdom of 2017 is not the same as that of 1972. However, the First Minister was right when she said this morning that devolution is under threat, although that threat does not come just from a small if vocal band who think that leaving the EU means returning to the constitution of the UK as it stood 40-odd years ago. The greatest threat to devolution is from Scottish nationalists, who want to see it fail, thereby allowing them to claim falsely that separation is the only way.
The Bill, the mechanism for the repatriation of powers, and the future relationship of our Governments must be placed firmly in the present. Solutions must reflect the Union as it is and strengthen the Union of tomorrow. Our exit must reflect the reality of devolution, which is now a fundamental and permanent part of the UK. Twenty years ago today, Scotland voted yes to a new Parliament. I am committed to devolution and to the Union. They are not mutually exclusive. I will not allow either to be undermined in this process. In leaving the EU, we can deliver hammer blows to nationalism—yes, of the yellow and black variety, but also of a deeper purple variety. Proposals that give succour to nationalists of either hue should not expect to receive my support. I urge Ministers to recognise the chance before them to deliver for the moderate majority in Scotland, who want to see devolution succeed and the Union protected, with better, stronger, more sustained co-operation between our two Governments, working together, not pulling apart.
The reservation of the power to amend retained EU law will be necessary in the period immediately post Brexit. Common UK-wide frameworks will be required for the long term in a number of areas. Protecting the integrity of the UK single market is absolutely key.
More powers will be coming to Holyrood; of that there is no doubt. The idea put forward by the SNP that the UK Government, who have just completed the transfer of £12 billion of income tax powers, and who are in the process of devolving huge swathes of social security powers, want to grab and micromanage hill farming in Scotland is not remotely credible.
The process of leaving the EU is transitional, but devolution is permanent. The question is whether the Scottish Government are willing and able to use the new powers they will get in the best interests of Scotland. Given that after a decade of the SNP in power, less than half of Scots believe that devolution has improved the quality of the health service or education provision, or the strength of the economy north of the border, I will not hold my breath. So I will answer the First Minister’s call today to stand up and defend devolution, but I will be defending it from her Government—from the wasted opportunities and wasted futures her Government have presided over. For the first 10 years of devolution, Scotland walked in the wrong direction. For the past 10 years, it has had no direction at all.
I have some difficulty listening to the First Minister and the nationalists opposite preaching to others about consensus while flat-out refusing to accept the result of not one but two referendums, and still, today, refusing to take the threat of a second independence referendum off the table. While SNP Members will no doubt make their views known with the melodrama and histrionics we have come to expect, never missing a chance to shoehorn in some grievance, I look forward to what I am sure will be the altogether more measured views of the Finance and Constitution Committee of the Scottish Parliament on this Bill. I hope that that Committee is given due respect and consideration by Ministers. We can make this work, if we work together.
Although SNP Members claim to be the voice of Scotland, they speak for no one but themselves. We must not let their hubris distract or deter us, the Conservative and Unionist party, from delivering Brexit and, in doing so, delivering for Scotland.
Sir Edward Davey (Kingston and Surbiton) (LD)
When a Government come to a Parliament and say, “Give us more powers, or there will be chaos,” democrats should be worried. Over the years, when a Government have said, “Give us more powers, or there will be chaos,” they have acted like dictators. I am not saying that the Government are a dictator, but they are doing what Lord Hailsham said: they are acting like an elective dictatorship. That is why they are, through this Bill, undermining the very weak concept of parliamentary democracy that we have retained in this country.
Mr Geoffrey Robinson (Coventry North West) (Lab)
Does the right hon. Gentleman agree that it is even worse for the Government to behave as an elected dictatorship, given that they have lost their majority?
Sir Edward Davey
The hon. Gentleman makes a very good point, and I will come to that.
I would argue that the Bill undermines parliamentary sovereignty more than any EU directive ever did, and I will explain to the Minister why that is. I do not think, for example, that the Bill does what leave voters wanted in the referendum. Many leave voters I talk to say they voted leave because they wanted to restore parliamentary sovereignty—they wanted Parliament to take back control. But this Bill does not give control back to Parliament; it gives control back to Ministers, who do not want to be held to account properly in this House.
Leave voters talked about getting more democracy, but as the hon. Gentleman said in his intervention, democracy is being taken not by this place but by a Government who do not even have a majority in this House. That is not what leave voters voted for. During the hours we have debated this Bill, I have heard that when people answered the referendum question, they were saying we should do what we are doing now. Well, I am afraid that that is not what happened. The question before the House tonight was not on the ballot paper in the referendum; it is a completely different question.
People might say that the Bill gives effect to the referendum vote, but the point is that there are many ways of doing that, and this Bill is not doing that in the spirit of the referendum and the spirit of increasing parliamentary sovereignty. In fact, we have heard from right hon. and hon. Members on both sides of the House alternative ways of giving effect to that referendum vote. Early in the debate, we heard some ideas from the right hon. Member for Derby South (Margaret Beckett). We have heard from the hon. Members for Totnes (Dr Wollaston), for Gloucester (Richard Graham) and for Aberavon (Stephen Kinnock). They have put forward ideas that go way beyond what is in the Bill in terms of holding the Government to account as they transcribe EU law into British law. I could think of a whole series of enhanced procedures for doing that, including special Committees and Select Committee hearings. Perhaps the Select Committee on Procedure should be asking that question and reporting back to the House—except the Government do not want that. They do not really want this House to be involved, and that is why they are excluding the Committees and going for this fast-track, fundamentally undemocratic approach.
Ministers will say, “What about time? All these alternative options will take time.” We put Bills through this House quickly when there is a war or a national emergency. There is no war or national emergency now; we have time to consider this as true democrats to ensure that we get it right. The fact that the Government are not doing that is outrageous.
The Bill’s approach is dangerous because parliamentary sovereignty in this country is such a weak reed, as it has been for many years. Executives of all hues—even, dare I say, coalitions—have, through the Whip system, managed to ensure that this House has not really taken part in some of the key decisions of the day. This is most seen in how the House debates Government expenditure decisions. Right hon. and hon. Members might be interested to know that the last time this House voted against a spending request from the Executive of the day was in 1919, when it voted against spending for the bathroom of the then Lord Chancellor. Since then, hundreds of billions of pounds have gone through this House without a proper vote against, because the Executive do not really believe in parliamentary sovereignty.
Parliamentary sovereignty is a weak doctrine in this country, and the danger of the Bill is that even more of what is left of it will be taken away. That is shocking. I believe that when leave voters talked about parliamentary sovereignty, they wanted to increase the power of this place. If we see the last vestiges of that power walking out of the door tonight, and if we vote for the Second Reading of this Bill, that will be a backward step and will go against the spirit of the referendum vote. Allowing the Government these additional powers is tantamount to the temporary abolition of this House. That is not what people voted for, and this House should defend itself and defend democracy.
Ben Bradley (Mansfield) (Con)
On 23 June 2016, the people of Mansfield voted overwhelmingly to leave the EU. They were so passionate about the issue that a record number turned out to vote on that day and 72% voted to leave. This decision was born out of not ignorance or fear but a feeling of indignation at the UK’s treatment by the EU and a desire to regain control of our borders, our laws and, most importantly, our sovereignty. With that decision has come a lot of uncertainty about Britain’s future—uncertainty that could have a massive effect on many aspects of our lives. I have spoken to a number of fantastic businesses in my constituency that will be affected in several different ways, some positive, some less so, but they all agree on the need for continuity and as much certainty as we can find. Nobody wants a situation in which our legislation disappears overnight, and it is that cliff edge that this Bill tries to avoid. A vote against it could plunge my constituents and the UK into chaos. At best, it would clearly lead to confusion and delay.
I welcome the words of the right hon. Member for Don Valley (Caroline Flint), who laid out very clearly the implications of voting against the Bill. I hope that her colleagues on the Opposition Benches will listen to her. Let us be clear that, despite the misleading media attention, the Bill does not give the Government carte blanche to legislate as they please. First, the limitations imposed by the affirmative procedure will prevent major decisions from being made without the scrutiny they rightly deserve, and even the negative procedure means that the instrument appears on the Order Paper and can be called out. Secondly, as we saw last June, the electorate simply will not stand being dictated to by an over-powerful Executive. The electorate ultimately have the power in their hands.
It is pretty hypocritical of Opposition Members to use the delegated legislation as an excuse when, as the hon. Member for Vauxhall (Kate Hoey) pointed out last week, the previous Labour Government relied so heavily on that kind of legislation to carry them through. I would be pleased to see further discussion of the safeguards that must be in place as we go forward to reassure Members who have legitimate concerns about how we sift out the bits of EU law we want to look at or about how we use the delegated legislation procedures, but that is exactly what the Committee stage is for. I therefore say to colleagues that any concerns in that regard should not prevent them from agreeing in principle to the Bill, as we are being asked to do today. One change that I would like to see proposed at that stage is including the leaving date in the Bill to give my constituents confidence that we are working towards a date and that there will be no lengthy delay in our leaving. I am sure that we can look at that closely going forward.
The powers that this Bill would bestow on Government are necessary to amend 12,000 EU regulations that require adaptation and incorporation into our newly independent legal system. It should be pretty clear to all of us that we cannot hope to take each and every one of those possible changes as votes in this House and sit here for hours and hours having thousands of votes—that is just not doable.
If passed, the Bill will stand us in good stead in the negotiations, showing that we respect the EU and the legislation that is currently in place, and that we can make trade and other legal arrangements with the EU on its own terms, but also that we have a contingency arrangement in place should no deal arise. A vital part of any negotiation is the ability to walk away. Opposition Members still do not quite seem to understand that concept. Regardless of whether we voted to leave or remain in the referendum, the political reality is that we need to prepare for life outside the EU. By voting for this Bill, we are not only enacting the will of the British people but giving the Government the very best chance of getting a good deal from the EU in the negotiations ahead, and ensuring that there is a secure and sturdy legal framework in the event of no deal. Frustrating or stalling the passage of this Bill, as Opposition Members are trying so hard to do, presents a significant threat to our bargaining position and our security in the long term. Clearly, what the UK needs now is continuity. The time to push for more safeguards and other amendments will come when we look at this more closely in Committee.
I conclude by thanking the Leader of the Opposition, in his absence, for his visit to my constituency on Saturday; it was a fantastic event, actually. With Mansfield hosting the Tour of Britain last Wednesday, I said at the time that any event that brings people in from outside the area to spend their money in Mansfield is worthy of my support, so it was brilliant to see so many of his supporters arrive in buses from Islington to wave their banners in the park and to boost our economy by buying their lunch and all the rest of it. I take this opportunity to thank him for moving his party so far away from the traditional values of thousands of lifelong Labour voters in Mansfield that they decided to vote Conservative for the first time ever in June. On the doorstep, their reasons were very consistent—“Brexit and Jeremy Corbyn”. The two are very closely connected. I remind the right hon. Gentleman that residents in Mansfield will not thank him if he attempts to frustrate and delay Brexit when we vote on this Bill. They do not want political games—they want a commitment to Brexit. Speeches by Opposition Members like that of the right hon. Member for Tottenham (Mr Lammy) and others just go to prove that the only way to get that is from this Conservative Government.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
When a Conservative former Attorney General looks at a Bill and describes it as an “astonishing monstrosity”, it is clear that somewhere something has gone wrong. When a Conservative former Chancellor of the Exchequer says that we are facing the prospect of frittering away parliamentary democracy, something is not as it seems. When hundreds of thousands of people, whether it is June Barnes in Kilburn or Peter Singer in Hampstead, feel compelled to email their MP saying that they are in shock at the Government’s tactics, it is clear that the ministerial power grab at the heart of this Bill is unacceptable and brazen.
I am told that the Prime Minister campaigned to remain in the EU, and that has made her transformation into Brexiteer-in-chief even more difficult to stomach. The hard Brexiteers back-slapped and sneered their way through the referendum campaign saying that they would “take back control”, but the irony is that what the Government are asking for in this Bill actually takes control away. It proposes taking away control of the law from Parliament, taking away control of governance from all our regions, and taking away hard-won rights from those who live and work here. Not only will this Bill be dangerous to our country’s integrity; it also poses a serious challenge to hard-fought-for rights of my constituents and many across the country.
Let me be clear that my opposition to the Government’s intended mass deployment of secondary legislation is due not to a prosaic attachment to the purest form of primary legislation but to the very real consequences it could have for my constituents’ lives. The decision to withdraw from the EU charter of fundamental rights is, at best, problematic and, at worst, actively contemptuous of the rights that protect all aspects of citizens’ lives. The EU charter of fundamental rights covers a broad set of protections that guarantee individual freedoms and rights, from the prohibition of torture and the right to life to holiday entitlement and working conditions. Without it, for example, workers in London, whose air quality is already at an illegal level, would lose layers of protection.
I would like to know which rights in particular the Government object to; perhaps the Minister can tell me. Is it the right to life, or the prohibition of torture and degrading treatment and punishment? Perhaps the Government take issue with the charter’s codification of equality rights, or perhaps the Secretary of State has a new-found disregard for privacy laws. Paying lip service to human rights is no guarantee of human rights, and introducing legislation that cannot be properly scrutinised is no way to govern people’s lives. The explicit disregarding of the charter risks the rights of working people.
The Government may ask why the British people should not simply trust them to replicate any protections and rights in forthcoming legislation. Well, when certain Conservative Members believe that rape victims should not have access to abortion, I do not blame the public for being sceptical of the Government and their ability to rule.
The Bill not only poses challenges to parliamentary scrutiny and people’s rights, but sends a stark message about the trajectory of devolution in this country, if one examines clause 11. The Government could have used the Bill as a real opportunity to address the governance of our regions. If there was ever a time to empower the newly elected representatives, it is now. As with the rights of the EU charter, it seems as though the Government are asking devolved nations to take their promises in good faith, and asking individual nations and regions to accept Whitehall control again. Curbing the scope of devolution and the ability of devolved bodies to act, particularly at this time, sends out a troubling message.
I am a London MP, and there is no doubt that Brexit will have a disproportionate impact on London, with 1 million EU nationals living in the city and making up 15% of the employment force.
Catherine West
I am grateful to my hon. Friend for giving way on the point about the London economy and EU nationals. Does she agree that an increasing number of EU nationals are very concerned, not just about the cost of their citizenship but about the constant changing of the goalposts by the increasingly incompetent Home Office?
Tulip Siddiq
I agree with my hon. Friend’s point. There are 17,000 EU nationals who live in my constituency, and they constantly come to my surgery because they are worried about the half-baked practice papers that are being put in front of them. In terms of the London economy, which my hon. Friend also mentioned, by 2020 a quarter of the GDP of the entire country will come from London alone. We have 800,000 private sector businesses. The Bill gives Ministers the power to modify retained EU law, and clause 11 stipulates that such powers should not be handed to the devolved authorities.
With the EU charter a thing of the past, London’s EU nationals will, as my hon. Friend suggests, have the right to question what their future holds and what rights will be guaranteed. An honest conversation is urgently needed on post-Brexit immigration arrangements and migrant protections for the huge population of non-EU citizens in London, and the Bill does not provide that. A lukewarm commitment to seek consent from devolved bodies will not do. Serious steps must be taken to mitigate the disproportionate impact that Brexit will have on the city where my constituency is based.
I will proudly vote against the Bill today with my Labour colleagues. The display put on by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) last Thursday revealed this Bill to be everything that campaigners warned it would be. It is a shoddy power grab that disrespects the democratic traditions of our country and throws hard-fought rights into total jeopardy, and the Government should be ashamed of themselves for introducing it.
Suella Fernandes (Fareham) (Con)
Despite some of the benefits that the UK has derived from its membership of the EU, overall, and overwhelmingly, our membership has had a corrosive effect on democracy. For decades, the political class in the UK has lacked the ability and the confidence to be bold for Britain. It has been emasculated by EU primacy. Clause 1, which repeals the European Communities Act, and clause 5, which brings to an end the primacy of EU law, constitute a welcome first step towards restoring parliamentary democracy to the United Kingdom.
Since the ECJ case of Costa v. ENEL in 1964 and the Factortame cases in the 1990s, our politicians and our courts have been robbed of their sovereignty, and of the freedom and independence to challenge, amend or override EU law and judgments, leading to an inherent insecurity in British politics. This has been partly fuelled by a sacrosanct belief in experts, a disproportionate desire for media headlines and an emphasis—an unjustified emphasis—on political correctness and polls. Moreover, it has been driven by the ultimate power grab, which is the one by the unaccountable and illegitimate EU. Whether in trade, immigration, tax policy, or agriculture and fisheries, the power to determine the direction of this country has been stolen from our Parliament by the EU.
That sums up the EU: its inherent lack of legitimacy and accountability has diminished the potency of UK politics, leaving us with an exaggerated sense of powerlessness, and a dulling of politics through a spiral of technocratic and administrative decisions. Whether we talk about trade, immigration or our courts, the EU has killed off innovation in politics. Through this Brexit Bill, we have a chance to reignite the ability to inspire and enthral through politics, law and justice, and that is why I am delighted to speak in its support.
The Bill is an essential piece of legislation and an integral part of the machinery that will make Brexit a reality and ensure that this Parliament rightly and faithfully honours the democratic instruction sent us by the British people in last year’s referendum. The reason why it is a prerequisite of Brexit and fundamental for this historic chapter in our country’s history is that it will achieve the central objective of those who voted leave in the EU referendum and of those who, although they did not support it, have come to accept the vote for taking back control of our laws. The Bill’s objective is to transcribe EU law in UK law, so that this Parliament—a beacon of democracy emulated around the world—will regain its power over whether and how such laws should apply.
Stephen Gethins
Will the hon. Lady tell us in what way the House of Lords is more accountable to the democratic populace than the European institutions?
Suella Fernandes
Through the Bill, our UK Parliament will regain authority over whether and how EU law will apply, and that is what honouring the result of the EU referendum is all about.
This Bill is necessary to ensure an orderly Brexit. The alternative does not bear thinking about. It is chaos, uncertainty and the abrupt evaporation of laws overnight, leaving us with nothing but a legal vacuum on the day after we have left the EU. That is what those who oppose the Bill are asking for, which is why I urge Labour Members to reconsider their position in opposition to the Bill and to vote for the pragmatism and necessity that it encapsulates.
A vote against the Bill is a vote in breach of voters’ trust and a vote for chaos for two reasons. First, the fact that the Bill has the effect of placing all current EU law into UK law is eminently sensible. Many of the laws will work in UK law without amendment, but some will need to be amended. There has been much criticism of the Henry VIII powers, but it is exaggerated and unjustified. The Hansard Society has calculated that of the 23 Government Bills in the 2015-16 parliamentary Session, 16 contained a total of 96 Henry VIII powers to amend or repeal primary legislation. Of those powers, 65 were included in Bills when they were introduced, and a further 31 were added to Bills during their progress through Parliament. There is therefore nothing alien or sinister about such powers, and to suggest otherwise is unjustified and disproportionate.
The Opposition have proposed no alternative. If there were individual votes to amend the EU laws, that would mean an individual vote on all 20,000 EU laws. If we conducted the process in that way, it would take over 200 days of parliamentary time, sitting 24 hours a day, seven days a week. An alternative would be to have a debate on every page of the law, but that would mean debates on over 600,000 pages of law. That leaves us with the only option of abandoning all EU law, which, as I have said, would mean legal chaos.
Secondly, the Bill is important because it repeals the European Communities Act 1972, which gives force to judgments from the European Court of Justice and regulations without any further need for scrutiny by Parliament. That is the biggest power grab to which this country has been subject. Politics should be less about mechanistic procedure and more about the big vision; less about systematic management and more about creating on a grand scale with radical thinking, setting a blueprint for society. Brexit is a birth and a chance for a new beginning, not a death. Now there is a chance for those who campaigned to leave the EU and those who see the opportunity ahead, even if they did not campaign for it, to unite in painting that bold and bright vision of the future of our country and of the world. For those who cannot or will not see that, the politics of yesterday may be good enough for them, but not for me.
Mr Geoffrey Robinson (Coventry North West) (Lab)
I shall be brief and to the point, as we are about to reach a critical stage in proceedings.
Like many hon. Members, particularly Opposition Members, I voted to remain in the European Union. Like many others, I was active in my constituency and throughout the west midlands in arguing that case, particularly to the manufacturers and traders for which the region is well known. I was disappointed, like many people, that the referendum turned out the other way. A result of 48:52 is pretty close, but in Coventry it was 40:60—60% of people voted to leave and 40% to remain.
When it came to the triggering of article 50 in the House, I had little doubt in my mind—indeed, I would never think of going against a clearly democratic vote—that we would have to do so, and we duly did. However, I also set out a couple of points that I thought would be essential if we were to avoid the worst aspects of what Brexit could mean: we needed a transitional period to the new arrangements, and those arrangements should be as soft as possible. I believe that both those points are as valid today as they were then. I agreed to sit back and watch how far the Government could get on achieving them. Unfortunately, they have not made much progress that anyone in this country or in Europe has noticed.
On the transitional arrangements, which would imply a period during which we would be in the single market and in the customs union, we have seen a remarkable performance. On the single market, half of the Cabinet is in and the other half is out; and another day the other half is in and the other half is out. The same goes for the customs union. What sort of negotiating activity that is I do not know. I cannot imagine what other kind of activity it is, but it is not skilful negotiation. We have not made any progress at all—if anything we have gone backwards on both those important considerations on which I was particularly looking for progress so that I could continue to give my unqualified support by recognising the vote in my Coventry constituency and happily supporting my constituents.
The simple fact is that the Government, having made a dog’s breakfast of the negotiations, have asked us to trust them to go ahead and change the laws of this land with a Bill that has been roundly criticised—I will not try to rise to the heights of hyperbole reached by colleagues on both sides of the House—as a travesty of good government and good legislation. The Bill is clearly full of faults, defects and inadequacies that have to be put right. The Government say, “Trust us, we will put them right.” They say that at the end of the process we will have a Bill that meets the needs and has the guaranteed support of the House. I say no to that; it will not do. Given their record in the negotiations, they are neither competent nor honest enough to deliver what is possible, and there is insufficient determination in the Executive or civil service to do so.
Mr Speaker
Does the hon. Member for Coventry North West (Mr Robinson) wish to conclude his oration, or has he already concluded it?
Mr Robinson
I would, very briefly, like to conclude. Thank you very much, Mr Speaker. The pause, if anything, has given me new breath and I shall seek to expend it.
I was saying that the Government have introduced the Bill with the words, “Trust us, we’ll put it right.” Nowhere has the Bill been more eruditely or expertly criticised than on their own Benches by the right hon. and learned Member for Beaconsfield (Mr Grieve), who unfortunately is not here for these latter stages. He has exposed it as being a shoddy Bill that should never have been brought forward.
We say very clearly to the Government tonight that, as far as the negotiation goes, a transitional arrangement is vital. Soft terms are equally important for our manufacturers, traders and financial companies—everybody on whose livelihood the wellbeing of this country depends. If we go for the mess the Government are currently promising us, I regret to say that we will have a very hard Brexit and the citizens of the whole country will take a very hard economic knock to their wellbeing. I want to avoid that, so I say take the Bill away. Bring back a corrected Bill that is decently presented and does not try to wrench power away from Parliament for ends that we cannot yet even specify. Bring it back in a shape fit enough that we could be justified in voting for it.
Stephen Kerr (Stirling) (Con)
I rise with enthusiasm to support the main principles of the Bill and its Second Reading. We have heard many excellent contributions and I would like to express my appreciation for the quality of this debate. To me, the debate comes down to something rather straightforward. When this House passed the Bill to hold an in/out referendum on the United Kingdom’s continued membership of the European Union, it entered a compact with the British people to act on their direct instruction. This Second Reading debate is about main principles. The first principle of the European Union (Withdrawal) Bill is to repeal the European Communities Act 1972 on the day we leave the European Union. A vote against that principle will be an attempt to set aside the result of the referendum and a base disrespect to the British people—it is as uncomplicated as that.
The second principle of the Bill is to convert EU law, taken as a whole, into UK law so that we can have a stable and functioning statute book on the day we leave the European Union. A vote against that principle would create the potential for instability and uncertainty, because we would have a broken statute book on the day we leave the European Union. It is no more complicated than that. This is a grand moment for British pragmatism.
Sincerely held concerns have been and are being raised about the Bill’s so-called Henry VIII powers. A number of right hon. and hon. Members on both sides of the House have made positive suggestions that deserve the careful consideration of those on the Government Front Bench—[Interruption.] Thanks for the prompt. There is clearly a willingness on the part of the Government both to listen and to accommodate, and I fully expect them to be as good as their word. That said, I find it strange that some of those who object so strenuously to the so-called Henry VIII powers and the Bill seem not to have had many concerns over the past 44 years when Governments have been expected to enact a steady stream of EU laws and regulations that neither the Government nor Parliament have had the power to change or the capacity to scrutinise properly.
Bill Grant (Ayr, Carrick and Cumnock) (Con)
Does my hon. Friend agree that as a nation we need to learn to respect the outcomes of referendums? We have had two major referendums in the UK, but we seem repeatedly to fail to respect the will of the British people.
Stephen Kerr
My hon. Friend’s excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.
Joanna Cherry (Edinburgh South West) (SNP)
Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?
Stephen Kerr
The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.
To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—
Mr Speaker
Order. I hope it is genuinely a point of order, rather than one of frustration from the hon. Gentleman.
Brendan O'Hara
I merely ask for guidance on the relevance of the hon. Gentleman’s speech on greenbelt and the Scottish Government to the topic of debate.
Mr Speaker
If the speech had been disorderly, I would have ruled as such, but it wasn’t, so I didn’t.
Stephen Kerr
Thank you, Mr Speaker.
Many of my constituents in Dunblane and Bridge of Allan are rightly angry at this power grab by the SNP. That is one of many such examples.
I have no hesitation in telling the Government, whom I am proud to support, that I want them to get on with Brexit. It will bring opportunities, and we must make the best of them. I want to get on with those free-trade deals across the world. We already know that customers globally have an insatiable appetite for Scottish food and drink, including Scottish salmon, and since Stirling is now the UK’s centre of excellence and innovation in salmon, and finfish aquaculture in general, I declare a vested interest. Those in the House who gleefully seize on every statement by EU negotiators, at the supposed expense of Her Majesty’s Ministers, should consider how their antics appear to the voting public. We must work together across parties to get the best deal for the British people, and I have the utmost faith and confidence in my right hon. Friend the Secretary of State for Exiting the European Union and his ministerial team to do just that. We must be, among ourselves, united.
The Bill represents the best kind of pragmatism, for which this country is rightly renowned around the world. It will efficiently allow us to leave the European Union, it will allow our devolved Administrations to make more decisions about the lives and livelihoods of the people whom they serve, and it will allow us to have a statute book that functions on the day we leave the European Union. I celebrate its British pragmatism.
Nick Thomas-Symonds (Torfaen) (Lab)
It is a pleasure to follow the hon. Member for Stirling (Stephen Kerr).
Let me make it clear at the outset that since the referendum of 23 June last year, I have always respected the outcome of the vote, both in my constituency and throughout the United Kingdom. That is why I have spent the last 15 months arguing for the best possible Brexit deal, which will secure jobs and prosperity in my constituency. This Bill, however, is not about the principle of withdrawal from the EU. It is about constitutional arrangements, and, as a Welsh Member of Parliament, I note in particular that the Welsh Government does not have the power to amend retained EU law—in other words, the law that is brought back via the Bill. This is about the kind of democracy that we are, and it is about the rights of our citizens. As I said in an earlier intervention, citizens currently have the right to take the Government to the European Court when they are found wanting in respect of certain matters, including environmental matters. Where is that remedy, or its replacement, in the Bill? It is not there.
Above all, there is the argument—I have heard it on a number of occasions, and I respect it—about bringing powers back to the House of Commons. The Bill does not achieve that. It is not so much a Bill to take back control to Parliament as a Bill to take control away from the legislature and give it to the Executive. I am deeply concerned about the Henry VIII powers in clauses 7, 8, 9 and 17; to put it simply, I do not trust Tory Ministers with those powers.
At the weekend, I was very interested to read a leaked letter signed by, apparently, up to 40 Tory MPs. It set out various red lines in respect of the transition deal that they want to see. What did it say about Henry VIII powers? It said:
“There can be no Henry VIII laws which automatically add EU/EEA laws onto our statute books”.
How are we, as Opposition Members, supposed to trust Ministers with Henry VIII powers when their own MPs will not?
I looked back at the past to see whether there is any precedent for handing over such powers to the Government. I had to go back as far as the Rating and Valuation Act 1925, would you believe, to find an Act that allowed Ministers to change the provisions of that Act. It states that
“any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect”.
That led the Lord Chief Justice of the day, Lord Hewart, to write a book called “The New Despotism” in 1929—I recommend it to Ministers—about what he called “the departmental despot”, who would be in a position to carry out law making away from proper accountability, away from scrutiny, and away from the reach of ordinary law.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
I agree with my hon. Friend that clauses 7, 8 and 9 are Henry VIII clauses, enabling Ministers to repeal and replace elements of the statute book at will and implying that our Parliament will not be able to take back control. It is clear that, rightly respecting the British public’s decision, we will be leaving the EU because article 50 has been triggered, but does my hon. Friend agree that, as it stands, the Bill is fatally flawed because it amounts to a power grab by Ministers?
Nick Thomas-Symonds
My hon. Friend is absolutely right that it is fatally flawed, and that is why I will vote against it with hon. Friends in the Lobby tonight.
I will simply never be able to trust Tory Ministers with things like workers’ rights, environmental protections and consumer rights. Let us take workers’ rights as an example. The Prime Minister has promised to retain all our workers’ rights as long as she holds office. In light of recent events, I hardly think that is particularly comforting, but in case we have any other doubts, let us just see what the then Tory Employment Minister, currently the International Development Secretary, said during the referendum campaign. She gave a speech at the Institute of Directors on 17 May 2016, about a month before the referendum. What does she want to do? To quote her, she wants to
“halve the burdens of the EU social and employment legislation”.
That is what the Tory Employment Minister said at the time of the referendum. It is no surprise that the Tories cannot be trusted now.
Christian Matheson (City of Chester) (Lab)
Did my hon. Friend see last Tuesday’s Order Paper, which listed a whole bunch of private Members’ Bills tabled by Brexiteer Conservative Members, including a Bill to take away the working time directive?
Nick Thomas-Symonds
I am grateful to my hon. Friend for drawing attention to that, and it simply reinforces the case we are making: that Tory Ministers simply cannot be trusted with powers of this nature.
We have also frequently heard the argument about the need for legal certainty, but the Bill as drafted does not provide that legal certainty. What guidance does it give to judges post-Brexit as to how they are supposed to interpret the law that originated from the European Union? Absolutely none. The idea of a preliminary reference to the European Court is of course no more, because of the red line on the ECJ. That is completely gone. The remedy that citizens once had to go to the European Court is also gone. So the idea that, post Brexit, the Bill will assist our constitutional arrangements and provide clarity is simply wrong.
Mr Mark Francois (Rayleigh and Wickford) (Con)
No, people will not be able to go to the ECJ—the hon. Gentleman is right about that—but they will be able to go to the British Supreme Court, just down the road from here, where decisions that affect them and their countrymen will be taken by British judges according to British law. What is wrong with that?
Nick Thomas-Symonds
I have nothing against British judges taking decisions. What I am talking about is the failure of this Bill to provide clarity about how the law now will be transposed into the law then. Let us talk about a judge down the road who is faced, for example, with a citizen demanding a remedy of holding the Government to account for failure to deal with pollution. They would previously have had a right to go to the European Court. What will be their right under the Bill? The Government have absolutely no idea. Let us have a Bill that gives that clarity post Brexit, which this Bill manifestly fails to do.
Nick Thomas-Symonds
No, I am not giving way again; I have given way three times, and many Members want to speak in this debate.
Let me summarise by saying this: the Bill is shoddy, and undermines the parliamentary democracy that it was meant to enhance. It is not worthy of support, and I urge colleagues not to support it tonight.
Several hon. Members rose—
Mr Speaker
Order. A five-minute limit on Back-Bench speeches must now apply if I am to accommodate colleagues.
Robert Courts (Witney) (Con)
It is an honour to contribute to this historic debate, and to follow the hon. Member for Torfaen (Nick Thomas-Symonds), who made an impassioned contribution.
I would like to start with a sober analysis of what the Bill is really about. It is about an overall approach. It is essential for a smooth and orderly exit from the European Union and provides the continuity that is needed for businesses and individuals alike. It is badly named, too—in the early stages of its progress it was called a repeal Bill, and the press call it that, but is much better seen as a continuity Bill. It is more notable for what it does not do than for what it does.
I suggest that it is incumbent on those who propose to vote against the Bill—rather than those who feel that it needs amending—to say what they would do instead to transfer EU law into British law. We have heard nothing from Labour Members about how they would achieve that. There are, of course, options. We could in theory simply ignore EU law, but that would lead to chaos, and I am sure no hon. Member would want that. Or we could vote on every measure that we need to transpose from EU to British law. But as we have heard, if we spoke 24/7 on such matters from this day onward, we would need 200 days of parliamentary time. That is not a practical option. That is why we need the Bill.
This is a necessary Bill that will perform the sensible task of providing continuity by moving the acquis of EU law into British law on the date of leaving. Essentially, it will turn off the tap on further EU regulations, but will not pull the plug and drain away any of the existing regulations.
We need some sober analysis of the Bill’s purpose, because it is not intended to give the Government sweeping new powers. It will not give the Government powers to pick and choose which regulations to keep or dispose of. That will be a matter for this sovereign Parliament in the years that follow. The Bill simply seeks to change, on a technical basis, references to EU bodies that will no longer be relevant into references to the relevant British bodies. As the Secretary of State said, it is not for Ministers to change laws because they do not like them. The Bill is also—this is a crucial point—strictly limited by the sunset clause to two years after the exit date.
We have heard about scrutiny, and parliamentary scrutiny is essential. The Government have said that all substantive policy changes will be strictly the preserve of the Bills to follow on trade, agriculture and immigration. As we all know, statutory instruments have been used for many years to deal with less contentious regulations. They are a parliamentary procedure. Members will be able to pray against them, and it is not true to say that that will bypass Parliament. Every regulation will be subject to parliamentary procedure, particularly in cases where the affirmative procedure is used.
The Secretary of State has made it clear, and I welcome this approach, that when constructive suggestions are made on drafting and scrutiny, the Government will listen, but the appropriate time for such observations is in Committee. None of those points, many of which have been very constructive, are any reason to vote against the Bill tonight. That would lead to chaos and induce exactly the hard Brexit that so many Opposition Members have mentioned.
This is an important Bill and I urge the House to support it. We will look at constructive suggestions in Committee, but now is not the time.
Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)
The last seven hours have demonstrated what this place does best. My right hon. Friend the Member for Don Valley (Caroline Flint) and my hon. Friends the Members for Lewisham East (Heidi Alexander), for Gedling (Vernon Coaker), for Wakefield (Mary Creagh) and for Cardiff South and Penarth (Stephen Doughty) have made excellent contributions to the debate. They have demonstrated that this Chamber of this House of Commons is able to debate matters in a way that no other place can, and that is what makes the content of the Bill so offensive.
Listening to Government Members today, I have heard several variations of something that they will all know is called the politician’s fallacy: “Something must be done. This Bill is something. Therefore we must do it.” I heard no substance or content, simply an argument that this is what we have and therefore we must do it. Nobody on the Opposition Benches is arguing that the wholesale adoption of European law should not take place; the argument is that the way in which the Bill is written is an affront to the democratic values that we hold dear.
We have heard from the right hon. Members for Basingstoke (Mrs Miller) and for Broxtowe (Anna Soubry), the right hon. and learned Member for Rushcliffe (Mr Clarke) and the hon. Members for Bromley and Chislehurst (Robert Neill), for Gainsborough (Sir Edward Leigh), for Chelmsford (Vicky Ford), for South Thanet (Craig Mackinlay), for Wellingborough (Mr Bone), for Eddisbury (Antoinette Sandbach), for Poole (Mr Syms) and for Totnes (Dr Wollaston) that the Bill is flawed. They have all said in their own words that the Bill is flawed, but they have hope, anticipation, expectation and trust in the Government. They have been assured that amendments will come forward to assuage their concerns. Rather than consider what might come, I ask them to look at how this Government have treated this House. The article 50 vote was delayed while the Prime Minister pursued a legal case to prevent her own Members from having a vote on it. There is a motion before the House tomorrow that will rig the Committee system to allow a minority Government to have a majority on Bill Committees, which is simply unacceptable.
Gareth Snell
I will not.
Words such as “the Minister may make regulations” are littered throughout the Bill, and clauses 7, 8, 9 and 17 produce unprecedented levels of power for the Ministers on the Treasury Bench. We are to understand that they have been in listening mode today, but when asked either by Government Members or by Opposition Members to address some concern not once have they intervened to do so. They have sat quietly, passing notes—I can only presume to the Government Members who delivered their whipped speeches so wonderfully—instead of making a contribution to the argument.
Gareth Snell
No, I will not give way.
We also have a programme motion that seeks to allow 64 hours of debate on what Government Members have described as one of the greatest constitutional changes in their lifetime. The money resolution seeks to allow any amount of money to be spent by Ministers if they deem it necessary.
Gareth Snell
No, I am not going to take it.
The ways and means resolution allows for “any taxation”. I thought the Conservative party was opposed to general taxation, but its Members are voting this evening for taxation for the sake of paying for a Bill that they will not allow to be scrutinised in this House. We are elected by our constituents as equals to have a say on the future of our country once we leave the European Union. No seat delivered a greater leave vote than mine. My constituents made their voice clear and I respect that, but they sent me here to get the best deal for them. I will be denied that right if I vote for this Bill’s Second Reading this evening.
The leave campaign talked about taking back control, but this Bill takes control away from Parliament. We will be relegated to observers in something that we have been told is the greatest constitutional event of our lifetimes. I will be joining my colleagues in voting against the Bill’s Second Reading, because it is not what my constituents want, it is not what I came here to do, and I refuse, like my hon. Friend the Member for Lewisham East, to vote myself out of a role in the Brexit negotiations.
Chris Philp (Croydon South) (Con)
It is a pleasure to follow the energetic speech of the hon. Member for Stoke-on-Trent Central (Gareth Snell). This is of course a Second Reading debate and we should properly be considering the general objectives and principles of the legislation. I think there is in fact some measure of consensus around the fact that such a Bill, or one similar to it, is required to give practical effect to our leaving the European Union. Even the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) admitted in his speech on Thursday that something like this was required, and even the House of Lords Constitution Committee accepts that something like this is necessary. It is clearly reasonable, when we have to pass 1,000 statutory instruments to effect leaving the European Union, that we do something like this Bill. I remind Opposition Members that all those 1,000 statutory instruments are votable, should they wish. The idea there is no democratic scrutiny is not accurate.
On Thursday and today, we have heard Opposition Members claim that the Bill gives unfettered power to the Executive, but it is very clear in both clauses 7 and 9 that the powers are circumscribed. Clause 7(1) states that the powers can be used only to correct a
“failure of retained EU law…or any…deficiency”.
Clause 9(1) clearly states that the powers can be used only to implement the exit agreement, an agreement on which this House will have a vote. The idea that the powers can be used across the board does not bear scrutiny.
Clauses 7(6) and 9(3) make it completely clear that a whole range of things, such as introducing new criminal laws, cannot be done under this Bill. The powers are fairly clearly circumscribed. To top that, there are sunset clauses that mean the powers are strictly time-limited, which gives further reassurance.
Clauses 7(4) and 9(2) mean that the Bill itself can be amended by regulation. If there is one little tweak we might consider, it is exempting the sunset clauses from that provision, but that is the kind of fine tuning that can quite properly happen in Committee, rather than on Second Reading.
I have heard quite a lot of extraordinary hyperbole and crocodile tears from some Opposition Members in this debate. The right hon. and learned Member for Holborn and St Pancras, who is not in his place, said on Thursday that he feels the Bill disenfranchises Parliament, but for the last 40 years he has been perfectly content for regulations and laws passed in Brussels by qualified majority voting, with no veto or definitive say by the UK Government, to be implemented in UK law by Orders in Council without so much as a sniff of a vote in this House. Where was his righteous indignation for the whole of the last 40 years?
The hon. Member for Holborn and Kilburn, who is in her place—[Interruption.] Sorry, Hampstead and Kilburn. I should know, having stood in that constituency in 2010. The hon. Member for Hampstead and Kilburn (Tulip Siddiq) said the Bill is a wholesale threat to rights under EU law, but the Bill copies and pastes wholesale those rights into UK law. Any material amendment to those rights would have to be passed by a vote of this House. She specifically referenced human rights law. She obviously has not read clauses 7(6)(e) and 9(3)(d).
Chris Philp
The hon. Lady should know, then, that the Bill expressly prohibits these powers being used in any way to interfere with human rights law. She will have seen that the Bill expressly precludes her concerns.
The Scottish National party is going into paroxysms of apoplexy at the merest hint that London might exercise even a smidgen of the powers currently exercised in Brussels. I have not heard a single word of protest in the two years I have been a Member about those self-same powers being exercised in Brussels. Where were the SNP’s shouts of indignation then?
Everyone seems to agree that the Bill is necessary. No doubt there are points of detail that can and will be improved on, but anyone who is serious about implementing the British public’s decision should vote for Second Reading this evening.
Pete Wishart (Perth and North Perthshire) (SNP)
I begin by trying to find a bit of consensus and agreement across the House. We are all basically agreed that we need to improve the Bill in Committee. Everyone seems to suggest that lots of amendments are required to improve this legislation.
I may have inadvertently misled the House last Thursday when I broke the crushing news that only eight days will be available in Committee, because actually only seven days will be available. That is because we are going to lose four hours out of the eight in days five and eight. So we will have seven days to rewrite the whole of the law system of the United Kingdom, whereas 41 days were given to the Maastricht treaty, 29 were given to the Lisbon treaty and 21 were given to entering the Common Market. We will have only seven days for this great repeal Bill—what an absolute embarrassment for this Government. They had better come back with a proper programme motion to give this House sufficient time—
Pete Wishart
I have not got time for the hon. Gentleman’s intervention, so he should sit down. On this side of the House, we have been trying to outdo each other in describing this Bill. I would describe it as a “Hammer House of Horror” Bill: it gifts unprecedented power to this Executive, drives a coach and horses through the devolution settlement and presents a profound threat to our human rights. It is hard, if not impossible, to conceive of a Bill that more undermines this “taking back control” mantra of all those who parroted it ad nauseam when they were talking about leaving the European Union.
I would not vote for this Bill in a month of Sundays. The UK is engaged in an almost unprecedented exercise of national self-harm with this whole Brexit project. We are indulging in a grotesque episode of economic, political and cultural self-flagellation and, by God, we are determined to give ourselves a damn good thrashing! We are opting for the hardest of hard Brexits, reaching for the most painful implement in the box, and the scars and pain will be there for decades to come.
Turning to the negotiations, I will put my cards on the table when it comes to these tricky conversations. I will try to lay them down as delicately and sensitively as I can. Never before has an enterprise of such political significance been prosecuted with such delusional cluelessness, which is approaching a national embarrassment. It is hard to think of any major international negotiations being handled so ineptly and chaotically; it is almost as if we have put the clowns in charge of the Brexit circus and their huge clown footprints are all over all of this. We are becoming a national embarrassment with our negotiations, and this Government have to start to get real and drop their delusions. This repeal Bill is only throwing salt on the wounds.
What interests me more than anything else about this is what the Bill tells us about how Scotland is now perceived in this union of nations. Today, we celebrate 20 years of the vote that delivered the Scottish Parliament: 20 years of really taking back control—Members may wish to see it like that. This Bill presents the biggest challenge that our Parliament has ever had to confront, as it undermines the very foundation and ethos of the development of our national Parliament: if something is not listed in the reserved powers, it is devolved. That approach was designed elegantly by Donald Dewar as a means to determine and shape our national Parliament, and it has served us so well since then. This Bill drives a coach and horses through that. Indeed, it is worse than that, as the Law Society of Scotland tells us:
“The effect of the Bill would be to remove the legislative competence of the Scottish Parliament in relation to any matter in retained EU law. This would be the case even if it related to areas of law not reserved to the UK under the Scotland Act, such as agriculture or fisheries.”
Then we must consider the Henry VIII power, an innovation so spectacular in its political audaciousness that one of Henry’s executioners would baulk at the whole experience. We have our own powers, which I refer to as the Robert the Bruce powers. We are actually compelled to exercise them as part of this Bill, even though we might have fundamental concerns in respect of democratic oversight. We are sailing towards the big Brexit iceberg, but Scotland has an opportunity. We can get down below decks, get on that lifeboat labelled “Scotland”, get out on to the ocean and row as quickly as we can to the shores of sanity.
Several hon. Members rose—
Mr Speaker
Order. After the next speaker, the time limit on Back-Bench speeches will need to be reduced to four minutes. I call Liz Twist.
Liz Twist (Blaydon) (Lab)
First, let me make it clear that people in my constituency voted leave in the referendum, but they did not vote to risk the regulations and protections that they have to safeguard them. I want to talk about not clauses and regulations, but practicalities. My constituency has suffered serious problems arising from two landfill sites. Last year, we had three months of—not to put too fine a point on it—stench from one of the sites. The year before, we had a serious litter escape that blighted the local rural landscape.
The House will not be surprised to hear that many of us want greater environmental controls, not only on landfill sites, but to protect our rivers, air and natural environment. My constituents are worried about and want to retain all the employment and health and safety rights that they have under European regulations. It is crucial that Members of this House have the opportunity to examine the process of bringing those regulations into domestic legislation and how they are to be carried forward. In its reliance on secondary legislation, the Bill takes away the House’s ability—the ability of all us Members—to ensure that existing protections remain. I want to make sure that not only environmental but other protections from European legislation remain; if they will not, I want to be able to raise those issues with the Government and in the Chamber.
Government statements have said that they are going to transfer all regulations—everything is going to be okay, and it is all going to be incorporated into UK law—but as more than one Member has said today, the devil is in the detail. It is that detail that we need the opportunity to deal with. To use another well-known phrase, fine words butter no parsnips. The Government have come forward with fine words, but we need them to come forward with practical mechanisms to allow the proper scrutiny of regulations in this House, and they must do so.
Tommy Sheppard (Edinburgh East) (SNP)
Some Government Members seem perturbed at the description of clause 7 as a power grab, but given the breadth of its powers and the absolute and unqualified way in which they are presented, the legislation represents a transfer of political authority from the elected House of this Parliament to the political Executive of Government on a scale not seen in modern times. Any democrat should be concerned about that, but what concerns me even more is Ministers’ justification for why such powers are necessary. They are effectively saying that this is now the only way that they can achieve Brexit and get the job done. That speaks volumes about the woeful inadequacy of the Government’s preparations for leaving the European Union.
It is no surprise: we all know and, indeed, have always known that the repatriation of European law and its integration into UK law would be complicated. It will throw up inconsistencies and anomalies and it will require further legislation. That is no secret. It is perturbing that 15 months after the referendum, having built a brand new, shiny Government Department, committed hundreds of millions of taxpayers’ money to the process and instructed thousands of civil servants on the job, the best the Government can come up with is, “Trust us; it will be all right on the night.” Where is the schedule of the principal EU laws that are to be repatriated, indicating the effect on domestic legislation and bringing forward legislative amendments for the House’s approval in order to make it work? Where is the schedule—the plan? There is none. It is a shocking abrogation of the Government’s responsibility.
If clause 7 is a power grab by the Executive, clause 11 is a power grab by the British state over the United Kingdom’s devolved national Parliaments. Let me explain it this way to my friends in the Scottish Conservative and Unionist party. Twenty years ago to the day, we voted to establish a national Parliament in Scotland. Our predecessors in this place went on to decide what its powers should be. If this country had control over fishing and agriculture back then, there would have been no dispute whatsoever: those powers would have been given to Holyrood. They would not have been included in schedule 5 to the Scotland Act 1998, which sets out the reserved powers. It would have been seen as an automatic, simple thing to do, yet that is not what is happening under the Bill, and we have to ask ourselves why.
We are being invited to trust Ministers, but I want to withhold my trust, because there are alternatives that they could have considered. They could simply have repealed the relevant bits in the 1998 Act and changed schedule 5. They could have repealed the measure and put in a new qualification on the Scottish Government to comply with whatever international agreements the UK forms in the future, or—here is the kicker—they could have said in the Bill, “This is our intention to devolve these powers,” and they could have put a time limit on that, after which it would automatically happen. The absence of that leads me not to trust the Government.
Drew Hendry
Does my hon. Friend agree that it would be incredible if the Scots Tories voted for this Bill to take powers away from Scotland, when even their leader, Ruth Davidson, says that this could do great economic harm to the UK?
Tommy Sheppard
I absolutely concur with my hon. Friend. I say to colleagues opposite: do not let yourselves be played for fools. It is quite clear that there is no intention to devolve. The reason why we warn about this Bill being a danger to devolution is that it is against not just the letter, but the spirit of the Scotland Act 1988, which achieved devolution.
Bill Grant
I thank the hon. Gentleman for giving way. Will you tell the House what powers will be taken away from Scotland with this Bill? Will you detail the powers that we are taking away—
Mr Speaker
Order. I can do no such thing, but the hon. Member for Edinburgh East (Tommy Sheppard) might be able to do so.
Tommy Sheppard
I find it incredible—Members on the Government Benches have had the answer to this question on three occasions. The point is that there is an opportunity in this place, in this month, in this debate to transfer powers from Brussels to Holyrood, and it is not being taken. Government Members invite us to trust them, but I fear that we cannot do so; if we could, they would have made clear their intention in the Bill. That is one reason why I will vote to decline giving this Bill a Second Reading tonight.
Tommy Sheppard
I ask the hon. Gentleman to please sit down, as time is very short.
Finally, many Members have stood up and said how their constituents voted over Brexit. Let me put this on the record: the people who sent me to this place to speak on their behalf voted by 74% to retain their European citizenship and against the process in which we are now engaged. The people of my country voted by 62% to retain their European membership. We were told in 2014 that the independence referendum was not a matter of Scotland dissolving itself and its citizens becoming part of another country. It was about a political union between Scotland, England, Wales and Northern Ireland. Within that Union, according to David Cameron, the views of Scotland would be respected. I call now for that respect to be shown to Scotland and to the Scottish Government. I know that the UK will leave the European Union—that much is certain—but what happens next must be different in different parts of the United Kingdom; it must be different in Scotland, so that Scottish interests can be protected. I say to the Conservative and Unionist party in Scotland: you may have a majority in this vote, but you are alone tonight in Scotland in letting this process go through.
Alex Norris (Nottingham North) (Lab/Co-op)
During June’s election, I made two promises about Brexit to my electorate, now my constituents: first, that I would respect the outcome of the referendum; and secondly, that I would work to get the best deal for our fine city. Those are promises that I endeavour to keep every day—I am visibly proclaiming that—and I will do so today by voting for Labour’s reasoned amendment and against this Bill getting its Second Reading.
It is of course critical that we recognise the outcome of the referendum. The majority of my constituents, and of our country, voted to leave the EU, and they rightly expect their Parliament to get on with the process; I accept that. However, we are talking about not whether we should leave—although regrettably we have spoken a lot about that today—but how we do it. We were not voted in to give Ministers unfettered, unqualified and unchallenged access to doing as they wish. This Bill is fatally flawed, because it utterly bypasses the very Parliament that our constituents elected us to form. That is not a leave or remain issue, or a left or right issue, and it is certainly not an issue of patriotism; it is about believing in our British democracy. If we did accept the Bill tonight, what would we not accept? If Parliament could be demeaned and reduced to a footnote at the stroke of a Minister’s pen, and if decades of hard-won rights could be dissolved on the 16:50 train back to a Minister’s constituency, what would be the point of having this parliamentary democracy?
To accept this Bill is to accept that Parliament is the Executive’s creature. That is not taking back control. Parliament is sovereign and should have the due opportunity to act as such. We have been asked to take on trust Ministers’ assurances—“Don’t worry, the Bill will be improved over this process, and certainly don’t worry if it comes into law, because all these lovely powers you’re giving us, we’ll give straight back.” I say to the Chamber: be very wary of the politician who says there is no alternative but to give them absolute power over something. Similarly, be very wary of the politician who says that they will give that power back.
Lloyd Russell-Moyle
Does my hon. Friend agree that the Government did not want us to debate Brexit originally? It took a court case for article 50 to be brought to this place, so we should not trust this Government, because they have been dragged kicking and screaming every step of the way.
Alex Norris
I thank my hon. Friend for his intervention. I know that in lofty debates such as this, which people will study for decades, we ought to quote high-minded sources to respond to such questions. I am going to draw on a favourite quote of mine, from a guy called Jim Palmer. He is an American. He is not a founding father; he was a Baltimore Orioles pitcher and is a member of the Baseball Hall of Fame. He said something really illustrative:
“how you do one thing is how you do everything.”
As my hon. Friend says, the one thing that the Government did over article 50 tells us exactly how they will behave in the rest of this process, and exactly why we should not take the encouragement of Conservative Back Benchers to trust their Ministers. History has shown that not to be a good idea.
Those same Government Members have also said to us, “Hang on a minute, you’re just dragging your feet. You’ve not offered a constructive alternative.” I have sat here for pretty much every minute of the last seven hours and 20 minutes, and I have heard the constructive alternative offered from Opposition Members many times. We all agree that we will need to put European legislation into British law—in fact, I am quite surprised by how readily Government Members agree and cheerlead for that—but that while it is clear that the vast majority of it will be uncontroversial and technical legislation that we need to get on with, there needs to be a triage process that brings before Parliament the things that do not fit into that category. Otherwise, what is the point of us?
This could be a watershed moment for our democracy. We know the cynicism about the work that we do here and our motivations for doing it. People who have watched us today will have seen us at our best, and they should see us do this every day on such important matters. This should be a watershed moment in the Brexit process, too, because we know how much of a struggle that is proving. We are wandering around the continent, drifting from place to place, never quite sure who is with us and who is not. Those are the characteristics of a bad stag do, not a negotiation strategy.
Today could be watershed moment. Across the House, we have had common cause about wanting to work as equal partners with our European friends. Let us do that. Let us take their invitations to speak at the European Parliament. Let us say today that we are going to protect the rights of their citizens who live in our country. Let us change our debate, because I find in life that, even with the most hardened enemy, once we stretch a hand out, it is incredible how often a hand is stretched back.
Ruth George (High Peak) (Lab)
It is a pleasure to follow my hon. Friend the Member for Nottingham North (Alex Norris).
As I said in the general election campaign and since to my constituents, I respect the result of the referendum, but this Bill is not about whether Britain leaves the European Union. It is about how we leave it, what role Parliament has in the process and how we safeguard all our vital rights and protections as we leave. I believe that Brexit must not lead to any drop in those rights and protections and that the power to decide them should be brought back to Parliament. In fact, bringing powers back to Parliament was one of the major arguments of Brexit’s proponents. In March 2016, the Foreign Secretary announced his decision on how he would campaign in the referendum, saying:
“Sometimes the public can see all too plainly the impotence of their own elected politicians… That enrages them… Democracy matters… At a time when Brussels should be devolving power, it is hauling more and more towards the centre, and there is no way that Britain can be unaffected.”
Well, we have not been unaffected. In fact, the Government are now looking to our decision to leave the EU as an excuse for far greater centralisation of power than we have had for almost 500 years. The Bill would put huge and unaccountable power into the hands of Ministers, sideline Parliament on major decisions and thereby put our crucial rights and protections at risk. Members should not just take my word for it.
Lloyd Russell-Moyle
Does my hon. Friend agree that the recent case of the Government acting illegally over employment tribunal fees is an example of how they cannot be trusted to act legally and justly for this country, and why Parliament needs to scrutinise them?
Ruth George
I absolutely agree.
The House of Commons Library, in its impartial comment, says:
“Clauses 7, 8 and 9 of the Bill grant the Government new and unprecedented powers.”
Parliament is being asked to grant wide powers when there is little idea yet of how they might be exercised.
I have seen for myself how the process of secondary legislation can be abused, when working on behalf of low-paid shop workers, many of whom are subject to attacks and injury. Five years ago, I was appalled at the secondary legislation Committee that debated some of the most abhorrent cuts proposed by the last Government —cuts to compensation for over 90% of innocent victims of crime. To their credit, every single Conservative Member on the First Delegated Legislation Committee called on the Government to withdraw or amend their proposals, including the right hon. Member for Wokingham (John Redwood), who is not renowned for his opposition to spending cuts.
However, instead of listening to their own Members and to the whole Committee, and instead of reconsidering the legislation, the Government just changed the Committee. Six weeks later, the same proposed cuts came back to a second Committee with three Parliamentary Private Secretaries, the vice-chair of the Conservative party and the Conservative party chair’s parliamentary adviser. As the hon. Member for Totnes (Dr Wollaston) told us, the Conservatives on the new Committee said not one word during the two-hour debate on the proposals; instead, they simply voted them through.
It is wrong for the Government to use this Bill, which is fundamentally important to the process of Brexit, to seek such methods to undermine our powers in Parliament. This power grab is so significant that it undermines the primary purpose of the Bill—to transpose EU regulations into UK law.
We are expected to believe that the Secretary of State for Exiting the European Union is listening to the comments made on both sides of the House about the flaws in this Bill, but he has not been seen in the Chamber for the last seven and a half hours of this debate, so I am not quite sure how much he is listening.
Such sweeping powers as the Government are seeking would cause lasting damage to the role and power of Parliament and do nothing to help deliver the Brexit deal we need—one that puts jobs and the economy first and maintains our rights and protections.
As the hon. Member for North East Somerset (Mr Rees-Mogg) put it just a month ago:
“It is about control. Do we make our laws according to our own democratic principles on the day we have left or not?”
The Bill says that we do not. For that hon. Member and for all other hon. Members, this Bill is about upholding our democratic principles. By voting against it, I will uphold those principles.
Sammy Wilson (East Antrim) (DUP)
DUP Members’ starting point on the Bill is, “Does it help us deliver the will of the people of the United Kingdom to leave the EU?” We believe that it does. We believe that it is, in fact, an essential building block.
I have listened to the arguments that have been made today. Some Opposition Members—the hon. Members for Bath (Wera Hobhouse) and for Cambridge (Daniel Zeichner) and the right hon. Member for Tottenham (Mr Lammy)—have made it quite clear that their reason for opposing the Bill is that they do not want to leave the EU. If they had stopped there, I could have understood their argument, but it is rather ironic that they go on to say how undemocratic the Bill is when they are quite happy to stay in the EU with directives and other laws going through without any reference to this House. In fact, 20,000 have gone through, yet those Members want to continue that.
Lady Hermon (North Down) (Ind)
I am very grateful to the hon. Gentleman for allowing me to interrupt his rhetoric. There is one critical point that I would like him to address, and that is that the Bill is not going anywhere without the legislative consent of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. We have no Assembly in Northern Ireland, so how will the Government get legislative consent?
Sammy Wilson
The fact that we do not have an Assembly in Northern Ireland might make it easier for the Government, but we will leave that aside.
The other argument that has been made is that the Bill is flawed and people want changes, yet the only way of getting them is to allow it to go to the next stage where the Minister has already made it clear he will consider amendments, provided that they are not designed as wrecking amendments.
May I make something clear from our point of view? We do not want to give the Government carte blanche to do whatever they wish. First, that is why we wanted to leave the EU. Secondly, we have had some experience of that in Northern Ireland. During the period of direct rule, decisions about the laws in Northern Ireland were made by Orders in Council in this place, which could not be amended. Of course, that sometimes led to bad law.
Arguments have been made against the Bill, claiming that it is a power grab. It is quite clear from what Ministers have said, from what the legislation says and from the restrictions placed on Ministers that that is not the case. First, it enables EU law to be brought into the sphere of this Parliament where eventually, if it is not appropriate, it can be amended through due process. Secondly, Ministers have made it quite clear that the powers in this legislation will be limited. Thirdly, they have made it clear that they will be only for technical amendments and that there cannot be changes, for example, that create criminal offences, change human rights, introduce new tax powers and so on. There are limits on what Ministers can do.
Ruth George
Does the hon. Gentleman agree with the House of Commons Library that in spite of what he has said it is difficult to ascertain how the content of the Bill can be regarded as any limit on the scope of the powers given to the Government under clause 17?
Sammy Wilson
Of course there are limits, and the ultimate limit is that we have heard speeches from Government Members today, and a considerable number of people, not just on the Opposition Benches, have made it quite clear that they perceive dangers in this Bill and would not give the Government a free hand. If Ministers tried to overstep the promises made on the Floor of the House and the limits on the face of the Bill, we can be sure of one thing: it will probably not be Opposition Members who stop Ministers doing that but Government Members. That is the ultimate brake on Ministers who try to abuse the powers that are being given to them.
Mr Francois
Reference was made earlier to the Lisbon treaty and, like me, as he was in the House at the time, the hon. Gentleman will remember debating it night after night. There is a fundamental difference between that and the Bill, in that the Bill can be amended in Committee or on Report, whereas we could not change a single dot or comma of the Lisbon treaty.
Sammy Wilson
Of course. That is the flaw in the argument of Opposition Members who have said that this Bill is flawed and therefore ought to be rejected tonight. If the Bill is flawed, the place to change it is here when it comes back for debate and amendment in Committee. That is the real test of whether people want an effective Bill, or no Bill because they do not want us to leave the EU in the first place.
Let us consider the impact of not having the powers in this Bill. First, we would now be gummed up for the next number of years in trying to get the legislation through. Secondly, there would be no certainty for businesses. I have heard people say here so many times, “We need certainty.” Well, the one way of having certainty is to transfer EU law into UK law so that there is a framework. Lastly, the Bill will enable Ministers, when they go out to negotiate our free trade deal with the rest of the EU, to ensure that we start from a basis of compliance and equivalence.
Helen Hayes (Dulwich and West Norwood) (Lab)
It is a pleasure to follow the hon. Member for East Antrim (Sammy Wilson). It was interesting to hear him say that he does not wish to give the Government carte blanche; I think he omitted the phrase, “Unless they give us £1 billion.”
My constituents voted overwhelmingly to remain in the European Union, and I have been clear in my commitment to continue to speak up for their views. In Dulwich and West Norwood, we are deeply concerned about the impact of Brexit on the economy, on our public services, on our rights and protections at work, on our justice system, on our environment, and on our local communities. We are concerned about the practical impact of Brexit on the number of nurses in our NHS, on the number of construction workers building the homes we so desperately need, and on rising inflation as a consequence of the fall in the value of the pound. We are also concerned about the impact of Brexit on our British values of tolerance, diversity and internationalism.
Over the past year, this Government have done nothing at all to reach out to the 48% of voters who voted to remain—nothing to reassure us that our legitimate concerns are being listened to and will be addressed. The Prime Minister sought to strengthen her mandate to implement Brexit on her terms at the general election, but her mandate was weakened. If one thing is absolutely clear from the general election result, it is that the Government absolutely do not have a mandate to implement Brexit on any terms. They do not have a mandate to implement a harmful Brexit. They do not have a mandate to be dishonest with the British people about the impact that Brexit will have, or to skirt over the detail of important constitutional change, yet the Government persist in running scared of parliamentary scrutiny, and have responded to criticism and the clear feedback of the UK electorate not by engaging, reaching out and reassuring, but by closing down debate. The Bill as drafted would put huge and unaccountable power into the hands of Government Ministers and put crucial rights and protections at risk. It is nothing less than a power grab for Tory Ministers, and it fundamentally undermines parliamentary democracy.
The single biggest commitment made by the leave campaign was to spend an additional £350 million a week on our NHS. There is no sign whatsoever that the Government are even close to being able to fulfil this commitment. The longer the negotiations progress, the less confidence many people will have that the Government are capable of negotiating a Brexit deal that will protect our national interests. Yet in the EU withdrawal Bill, this minority Conservative Government are seeking permission to implement Brexit on any terms, at any cost, and that is simply not acceptable.
The article 50 process has already eroded Parliament’s role in relation to the Brexit negotiations, denying a meaningful vote on the Government’s proposed final deal, and we are now being asked to surrender control over the future direction of legislation that derives from the EU. This EU withdrawal Bill is designed to set a baseline of legislation for erosion and dismantling, with no mechanism for keeping pace with future developments in EU law, rather than a foundation for further development and a strengthening of rights and protections. The Government cannot expect the British people to have confidence that they will still be able to rely on the protections and regulations we currently receive from the EU when the EU withdrawal Bill, as currently drafted, would give the Government the power to vary regulations at will.
The promises made by the leave campaign and the Government in relation to Brexit are fast proving to be the emperor’s new clothes, and I, for one, am not afraid to say that I cannot see them. My constituents did not vote for Brexit, and they certainly do not accept it on any terms. The Brexit negotiations must take place in an open and transparent way, and they must be accountable to Parliament. If, as I suspect, these promises cannot be delivered by Brexit, we must have the opportunity to reject the Government’s deal and go back to the drawing board. I urge Members across the House, whether they are in favour of Brexit or not, to reject this Bill because it places too much power in the hands of too few Ministers, it compromises the sovereignty of Parliament, and, in doing so, it works—
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Mr Speaker,
“We will scrap the Conservatives’…White Paper and replace it with fresh negotiating priorities that have a strong emphasis on…the Single Market”
and putting “the economy first”. That was the manifesto on which Labour Members stood only a few months ago. We said that we would scrap this Bill and send it back. I beg Labour colleagues who are thinking about voting with the Government to consider that they stood, only a few months ago, on scrapping the White Paper, and I urge them to stand by the manifesto they stood for.
Some Conservative Members would, like ostriches, like to shove their heads into the sand—they want Brexit on any terms—but they are a minority. I believe that the majority of Conservative Members genuinely want a decent Bill that will aid the transition between our being in the European Union and being out of it.
I am a remainer. Just like most of my constituents, I would love to remain in the European Union—we will make that case—but I am also a democrat. However, being a democrat is not about just handing all powers to the Executive; it is about holding them to account each step of the way.
I have listened to lots of the arguments from Members on both sides of the House about how the Bill could be improved. There is a strategy—a legitimate strategy—of saying, “Let us pass it tonight and amend it in Committee.” However, I think that that is incorrect, because the flaws in the Bill are so huge and fundamental that if we followed that strategy, we would be fiddling with the deckchairs on a sinking ship. Unfortunately, what we must do is to send this Bill back.
I will outline a few areas in which the Bill fundamentally fails to live up to decent democratic principles and restricts the rights of our people. It removes the charter of fundamental rights from UK law. Let us be very clear that that charter provides digital rights, asylum rights, pension rights for LGBT people and safeguards for maternity rights. At the moment, for example, it ensures that a gay couple who marry here in the UK have their marriage recognised elsewhere in Europe.
Geoffrey Clifton-Brown (The Cotswolds) (Con)
The hon. Gentleman talks about the charter of fundamental rights. What is wrong with our Supreme Court, which is one of the most respected judicial systems in the world, providing those very same rights?
Lloyd Russell-Moyle
There is nothing wrong with our Supreme Court, but what better than to have an additional protection? I think that the hon. Gentleman makes a ridiculous argument.
My next point is about safeguards for the current statutory instruments. Much of EU law has been brought into UK law as statutory instruments. Those statutory instruments are underpinned by EU law, which includes an ability to fine Governments for overstepping that law. If EU oversight is removed but the statutory instruments continue to exist, they will be weak to amendment through the negative procedure. That puts people’s rights to things such as TUPE and the working time directive at risk. Clearly, therefore, those statutory instruments should have additional statutory underpinning such that they cannot be removed using the negative procedure.
Ruth George
Does my hon. Friend agree that we should not trust the party that refused to implement the social chapter at all, with all its rights at work that come from Europe?
Mr Speaker
Order. Before I call Mr Russell-Moyle, I would point out that every intervention is mucking up the chances of the remaining speakers who want to make a contribution. I call Mr Russell-Moyle.
Lloyd Russell-Moyle
I agree. The Bill also—[Laughter.] I wanted to move on quickly.
The Bill also fails completely to mention or touch on how some of the soft-law mechanisms will be brought into the UK framework, such as the open method of co-ordination. It does not even mention that area of EU co-ordination. We will clearly want to adopt significant parts of it, but the Bill is completely quiet about it.
Of course there is a need to give Ministers certain powers, but even the emergency powers provided during the second world war were not powers for Ministers to spend unfettered amounts. This Bill gives Ministers the power to spend such amounts and gives them unheard-of powers. It is not a democratic Bill, and it cannot be classed as bringing power back to this country or to this Parliament. Clearly what we need to do tonight is to vote against this Bill. We need to send it back and get the Government to give us a decent Bill that will preserve our democratic rights for our people and for our Parliament.
Joanna Cherry (Edinburgh South West) (SNP)
Last week, we heard excellent forensic legal analysis, on both sides of the House, from the shadow Secretary of State for Exiting the European Union and from the right hon. and learned Member for Beaconsfield (Mr Grieve). I endorse much of what they both said but, for my part, I, like my SNP colleagues, will vote against the Second Reading of the Bill. There is no question that the Scottish National party could support the Bill until there is considerable movement towards respecting the wishes of Scottish voters who, as well as having endorsed the devolution settlement 20 years ago tonight, also voted to remain in the European Union.
Conservative and Unionist Members for Scottish constituencies seem to be a little hard of hearing and appear not to have read their briefings about the Bill—or indeed the Bill itself—so let me spell out for them why this is a power grab on the devolved institutions. I will use not my own words, but those of the non-partisan and neutral Law Society of Scotland:
“The effect of the bill would be to remove the legislative competence of the Scottish Parliament in relation to any matter in retained EU law. This would be the case even if it related to areas of law not reserved to the UK under the Scotland Act, such as agriculture or fisheries.”
There are some of the devolved powers that are being grabbed back.
If Conservative Members cared to examine the Bill with the attention it deserves, particularly in relation to Scotland, they would see that it creates a complex division of decision-making responsibility that does not reflect the reality of devolution. In particular, it empowers UK Ministers to make changes in devolved policy areas without any involvement of either the Scottish Government or the Scottish Parliament. This includes policy areas such as the Scottish justice system, where the Scottish Parliament has primary responsibility. That is why we say that this Bill is a power grab.
Twenty years ago tonight, I hosted a party in my flat in Edinburgh for friends from all political parties that had voted for devolution in Scotland. The devolved scheme that followed was the brainchild of the late, great Donald Dewar.
Chris Law (Dundee West) (SNP)
On the position of Scottish Conservatives on devolution, I thought that Scottish Tory MPs would be interested in some breaking news. The Scottish Conservative leader, Ruth Davidson, has said on the BBC in the past hour that she is
“not flying the flag for Brexit”,
and would in fact vote again for remaining in the EU. I would like to hear what my hon. and learned Friend has to say about that.
Joanna Cherry
My hon. Friend makes my point for me.
The point I was about to make is that 20 years ago in Scotland, people from all political walks of life voted for the devolved settlement. It is the settled will of the Scottish people. The question for the 12 new Scottish Tory MPs is: will they make their presence felt in this Parliament, and will they protect the democratic will of the Scottish people, including their own constituents, who voted for devolution 20 years ago by 75% and voted to remain in the European Union by 62%? Tonight is a test of their mettle. Will they represent their constituents’ views? Will they defend the devolved settlement in Scotland? Will they follow what their leader in Scotland, Ruth Davidson, has said, or will they troop through the Lobby like lobby fodder to undermine the settled will of the Scottish people and their constituents?
Several hon. Members rose—
James Frith (Bury North) (Lab)
I join the House only 48 hours after the birth of my son, Bobby James. Dads on this side of the House proudly change nappies before coming to Parliament; we do not get out of changing nappies because we are in Parliament.
Having considered how we exit the baby, I am now considering how we exit the European Union. As many Members have said, this is not about whether we leave but how. For me, opposing the Bill is scrutiny, not mutiny, on Brexit. I maintain a commitment that I made to the people of Bury North in my election victory to fight for a practical Brexit. I do not trust the Government to show Britain the best exit, let alone set it out with vision and aplomb. Bombastic swagger, yes; vision, zero. It was going to be easy, we were told, but I ask for more grace in negotiation. Perhaps Ministers could remember the 48% as well as the 52% when handling Brexit. The referendum result was clear, fair and decisive, but in exiting we need a deal that works for the 48 and the 52, not the 1922.
I stood at the election with a clear view on Brexit that, as a remainer, I would fight for a Brexit that worked for everyone in Bury North. Whether people were leavers or remainers, it was time for unity—a practical Brexit that kept uppermost in people’s minds jobs, skills and opportunities for all. The result of the election did not change the Government’s instincts overnight. They have not changed their position on workers’ rights, on access to justice, on working time, or on security and safety at work. Those measures were bombarded on their way into law, and they will be picked apart by Government Members in the transition. The repeal Bill should be a copy and paste exercise, but instead the Government seek measures that would allow them not to copy and paste but to copy and cut. Decades of social progress, enshrined in law, are at the mercy of the pick-and-choose brigade who run the Tories. If foxhunting and grammar schools are back on the agenda, what of workers’ rights? I urge Members to vote against the motion. They should accept Brexit, but how we leave matters: they should not support the Government on the Bill.
Melanie Onn (Great Grimsby) (Lab)
The Secretary of State for Exiting the European Union urged us to vote for the Bill, and said:
“Providing certainty and stability in the lead up to our withdrawal is a key priority. Businesses and individuals need reassurance that there will be no unexpected changes to our laws after exit day and that is exactly what the repeal Bill provides.”
If the Government really wished to provide certainty they would guarantee in the Bill that there would not be any reductions in workers’ rights post Brexit. The Secretary of State and the Prime Minister have gone to great lengths to reassure us that people will not see any reductions in their rights at work under this Government, but the White Paper covers only two of the three main ways in which rights could be reduced after Brexit. The third is by leaving those rights in secondary legislation, coupled with the powers that the Government have sought to grant themselves in the Bill, which would allow any Government in future to water down basic privileges that people enjoy at work today. The only assurance we are being offered that that will not happen is the words of the Secretary of State asking us to trust him and his Government. I am afraid that it just is not good enough to ask us to place our faith blindly in the Government. The point has already been made in this debate that even if we were inclined to trust him based on his record, those around him continue to fail to convince us that they would carry through their lightly given assurances.
My right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), in his excellent speech on Thursday, quoted the Foreign Secretary, the International Trade Secretary and the International Development Secretary, who have all made their true intentions known on this issue. He could have added to that list the Transport Secretary, who said in 2014 that he wants to “slay health and safety culture”, or even the Prime Minister, who said that the Labour Government’s adoption of the social chapter showed their weakness in standing up to trade unions. According to the Prime Minister, the only reason a Government would ensure that part-time workers are treated the same as full-time workers, ensure that no one is made to work more than a maximum of 48 hours a week, or secure leave for pregnant women, is if a trade union made them do it.
I cannot in good conscience support the Government’s Bill, which I fundamentally believe fails to protect the scrutiny role of Parliament, and therefore puts the rights and interests of working people at even greater risk. I genuinely hope that Ministers will consider carefully and take on board the well thought out objections to the Bill from those on the Government Benches. However, I cannot share those Members’ optimism that the Government are listening all that closely.
Mike Hill (Hartlepool) (Lab)
I have cut down my speech, because it is almost the witching hour and the Brexit Minister needs to weave his magic.
I represent the town of Hartlepool and the outlying villages. I have about 96,000 constituents, and in the EU referendum, of those who voted, more than 70% voted to leave—the highest percentage in the north-east. Clearly, the vast majority of people in my constituency want Brexit. It is my duty, as their MP, to reflect that opinion, but I believe it would be a dereliction of that duty if I voted to give Ministers executive powers to implement changes to complex and important regulations without recourse to scrutiny by Parliament.
Despite all the rhetoric and spin, I do not see voting against this power-grab Bill as blocking Brexit—far from it. As a former union official, I know that if you allow the other side to have it all their way in negotiations you may as well not be in the room. That would not be acting in members’ best interests. I believe I am acting in my constituents’ best interests by voting to protect the right to hold the Government to account during the Brexit process. To do otherwise would be unacceptable and disrespectful to my constituents.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
It is a pleasure to wind up this Second Reading debate. I pay tribute at the outset to all those who have contributed to it. Sadly, it is not possible to recognise all the impressive contributions that have been made over the course of this two-day debate, but I would like to single out and congratulate my hon. Friend the Member for Bury North (James Frith) on the birth of his son, and my hon. Friend the Member for Canterbury (Rosie Duffield) on her excellent maiden speech. She brought home to the House not only her love for her constituency, but how much it benefits from economic and cultural exchange with our partners in Europe.
A large number of contributors have stressed the historic nature of this debate, and they were right to do so. The Bill before us is one of the most constitutionally significant pieces of legislation in our country’s history and, in practical terms, will facilitate one of the largest legislative projects ever undertaken by Parliament. The maturity and seriousness of much of the debate that has taken place has rightly reflected the significance of the issues at stake.
The Opposition accept that the Brexit process requires legislation to disentangle the UK from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave. Indeed, we acknowledge that this is an essential step if we are to avoid the most chaotic of departures, and as such the Secretary of State is absolutely right to argue that every hon. Member has a shared interest in getting the legislation right.
As many hon. Members have rightly argued, the Bill is not about whether Brexit will take place. As the Secretary of State made clear in his opening remarks last week, the Bill in itself will not determine whether we leave the European Union. That decision was taken on 23 June 2016 in the referendum and was given effect by the triggering of article 50, an act of notification that was itself only possible because this House, including Labour Members, overwhelming backed the Government’s European Union (Notification of Withdrawal) Bill. What is at issue is how we leave, the role of Parliament in that process and the precedents we set. As the right hon. and learned Member for Rushcliffe (Mr Clarke) argued in a characteristically incisive speech on the first day, the question is not whether a Bill such as this is necessary but whether this particular form of the Bill is remotely acceptable. Quite simply, we do not believe it is.
Of the significant number of speakers in this debate, only the most cavalier have failed to remark upon the flawed nature of the Bill. As my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) so forensically exposed last week, those flaws are not just serious; they are fundamental. The deficiencies in our delegated legislation system have been remarked upon by many Members, not least in the powerful contributions by my hon. Friends the Members for Rhondda (Chris Bryant), for City of Durham (Dr Blackman-Woods) and for High Peak (Ruth George), but the delegated powers conferred on Ministers in clauses 7, 8 and 9 are extraordinary in their constitutional potency and scope. As several hon. Members have mentioned, clause 9 could theoretically be used to amend the Act itself, with only the most basic restrictions acting as safeguards against an overweening Executive. Given that clause 9 allows for the use of sweeping powers over the implementation of the withdrawal agreement, the Bill would allow all aspects of such an agreement, including the divorce bill, to be agreed by Ministers with the least possible scrutiny in this place.
Clause 17 is a power so extensive in its potential application that it could extend to every facet of our national life, and as a consequence opens up the possibility of changes to vast areas of law without full parliamentary process. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) put it in her passionate contribution, these are powers that would make a Tudor monarch proud.
To those who believe that we can merely correct those powers—that we can put through enhanced scrutiny in Committee and the Bill will be fixed—I say that the sweeping powers in the Bill are not its only weakness. Provisions in the Bill rule out a sensible transitional arrangement. Far from delivering clarity on the status and nature of EU-derived law, the Bill is riddled with ambiguities that will create deep uncertainty about how this body of law will apply after incorporation. In ruling out the charter of fundamental rights for purely ideological reasons, the Bill could mean that individuals and businesses cannot assert the rights that it elsewhere seeks to maintain. And in its treatment of the devolved institutions, the Bill risks further destabilising the Union between the four nations of the UK. In short, it is a fundamentally flawed Bill, and the right hon. and learned Member for Beaconsfield (Mr Grieve) was right to refer to it in his contribution as an “astonishing monstrosity”. As he put it in an article in the Evening Standard on Thursday, it
“seeks to confer powers on the Government to carry out Brexit in breach of our constitutional principles, in a manner that no sovereign Parliament should allow.”
The central questions before each Member are whether they truly believe the Government accept just how deficient the Bill is, whether they trust Ministers to co-operate in rectifying its many deficiencies and whether, as a consequence, they are confident that it can be made watertight in the eight days that the programme motion allocates for the Committee stage. In short, the question is whether hon. Members believe that it is feasible and probable that the breathtaking tapestry of sweeping delegated powers woven into the Bill can be unpicked and the Bill made good, or whether it is so deeply flawed that, as my right hon. Friend the Member for Leeds Central (Hilary Benn) put it in a brilliant speech, the Government should go away and do their homework again.
We do not need to legislate in this fashion to achieve the necessary aims that lie behind the Bill, and if we are all honest, we will agree that the Government should not have put hon. Members on both sides of the House in this position. Ministers have known for a considerable time of the real and genuinely held concerns about the approach that the Bill takes. The Opposition raised concerns following the publication of the White Paper; we reiterated those concerns when the Bill was first published; and, in a letter to the Secretary of State at the start of the month, we called again for constructive engagement. While many Conservative Members will no doubt all too readily dismiss the concerns that we have raised, those concerns have been echoed for some time by voices from the Government Benches, as well as by parliamentary Committees and numerous non-parliamentary organisations.
In short, the Government have had ample time to make it clear that they are willing to correct the flaws in the Bill and to table amendments which show that they mean it, but only now are we being told that Ministers are in listening mode and are open to ideas for constructive improvements to the Bill. As many Members have noted, we are being asked, in a sense, to take it on trust that conversations will be held, and that we will have assurances down the line about how Ministers will use the powers in the Bill. Yet the Secretary of State, in his opening remarks, defended the wording of the Bill as it stands, and offered no concrete concessions that might reassure Members on both sides of the House. Given the Government’s track record, which a number of my hon. Friends have highlighted, we need proof of real movement. We need more than vague offers to talk during Committee stage.
Many of us remain utterly bewildered about why the Bill has been drafted in this form, and why Ministers felt it that it was wise to ignore the Exiting the European Union Committee’s call for the Bill to be published in draft so that its flaws could be addressed before we reached this point. The unique challenge of disentangling the UK from the EU’s legal structures and ensuring that we have a functioning statute book on the day we leave required a Bill that created consensus across this House, not one that undermines it. It required a Bill that restored power to the House of Commons, not one that concentrates unparalleled power in the hands of the Executive.
All of us—all Members, throughout the House—agree that a Bill of this kind is necessary, but that does not mean that Parliament should accept this fundamentally flawed Bill. It is for that reason, and that reason alone, that the Opposition will vote against it tonight.
The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)
By my count, no fewer than 107 Members have spoken during the two days of this Second Reading debate. I hope that the House will forgive me when I say that, in the time left to me, I shall not be able to respond fully and in detail to each one of those contributions. However, I do want to express my appreciation to all Members who have taken part; and, like the hon. Member for Greenwich and Woolwich (Matthew Pennycook), I want to single out the hon. Member for Canterbury (Rosie Duffield), who made a fine maiden speech. Those of us who were in the Chamber to listen, or who read her speech in Hansard, will recall the obvious passion and affection with which she spoke about the different communities that make up her constituency. Let me add that I—and my parliamentary friends—also appreciated the generous tribute that she paid to her predecessor, Sir Julian Brazier, and I thank her for it.
I want to spend the time that I have in trying to address what seem to me to have been the three chief criticisms of the Bill expressed in various quarters of the House during the two days of debate on Second Reading: the question of the underlying principles of EU law; the matter of devolution and the powers of the devolved Administrations; and the issue of the delegated powers that are granted by the Bill. Then, again, I will try to say something about how the Government see the way forward. Let me start, however, by reminding the House why the Bill is needed.
Both the Opposition Front-Bench spokesman, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), neither of whom could be characterised as ardent champions of the leave cause—indeed, I count myself rather in their camp on the issue—said that the Bill does not determine whether or not we leave the European Union. That was a decision that the electorate took democratically last year, and both the fact of our departure and the process and timetable that govern that have to proceed now according to the process and timeframe laid out in article 50 of the treaty on European Union. What the Bill does is enable us to have a coherent, functioning statute book and regulatory system on the day that we leave and thereafter, because at that date—to take the words of article 50—the treaties cease to apply to the United Kingdom, so the rights and responsibilities that have effect legally in the United Kingdom because of European law will fall away unless they are imported into United Kingdom law by this Bill.
There were many eloquent contributions from Members about the concerns they or their constituents had about the future of various rights—employment rights, environmental rights and so on—that they currently enjoy; the hon. Member for Blaydon (Liz Twist), in recent hours of the debate was one such. My response is that those very employment, environmental and other rights, conferred as a result of EU regulations or judgments of the European Court, are continued by this Bill on a United Kingdom legal basis as part of what my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) described as the wholesale adoption of European law. I have to say to the official Opposition that to vote against the Bill, as they propose to do, is therefore to vote against continuing those rights on a United Kingdom legal basis. It is to put those rights at risk, and open up the risk of a chaotic departure from the European Union, which is not going to be in the interests of either individuals or businesses in this country.
Mr Lidington
I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).
Mr Clarke
Throughout the discussion on this Bill, it has been entirely uncontroversial for everybody to agree that a Bill is required to ensure continuity and certainty for existing EU legal arrangements, putting them into British law straight away for the future. Will my right hon. Friend give an undertaking that when we move to the Committee stage in a few weeks, or probably about a month, the Government will produce substantial amendments to address what this whole debate has been about: the huge extension to the Government of discretionary powers that go far beyond the limited ambition my right hon. Friend is describing? I would prefer him and the Government to come back, address those issues and turn this Bill into one that resembles the reassuring descriptions of it that keep being given by the Secretary of State for Brexit and by him—two members of the Government whose word I would actually accept implicitly, but in the political world I have known Governments to go back on reassuring words quite frequently.
Mr Lidington
I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).
Stephen Timms
I invite the Secretary of State to respond to the criticism of his party colleague, the right hon. and learned Member for Beaconsfield (Mr Grieve), who is surely absolutely right to describe this as an “appalling monstrosity” of a Bill, which the House, frankly, should throw out.
Mr Lidington
That is a not a verdict with which I agree. Some of the criticisms of the Bill have been exaggerated up to and beyond the point of hyperbole, and I will seek to explain why.
In concluding my comments about why the Bill is needed, I want to stress that the time available to us under the terms of article 50 is limited. We must assume that in March 2019 this country will leave the European Union. That will be the deadline, and therefore by that date we need not only to have primary legislation enacted, but to have established the new regulatory bodies. We will need to have given effect to the secondary legislation that is proposed under the defined powers laid out in the Bill.
Several right hon. and hon. Members have said, “Yes, certain rights may be being preserved, but what about the general underlying principles of EU law?” As I said earlier, when we leave, the treaties will cease to apply to this country, but under the Bill, the general principles of European law, as recognised by the Court of Justice before exit day, or as embodied in extant European legislation, will be retained in United Kingdom law for the purposes of interpreting retained EU law. Existing sources of rights and domestic rights of action will continue to operate in United Kingdom law undisturbed by the Bill. That includes rights such as the right to equal treatment and non-discrimination. Similarly, notwithstanding our exit from the EU, individuals will continue to be able to challenge secondary legislation and administrative action under our domestic law by way of well-established grounds of judicial review.
To take two important issues that have been raised, all the rights and remedies available under the working time directive or the Equality Act 2010 will remain in force, but they will be enforced through the United Kingdom courts—ultimately, our Supreme Court—rather than through the European courts.
Mr Dominic Grieve (Beaconsfield) (Con)
I wonder whether what my right hon. Friend says can actually be correct. The feature of the Bill is that it removes the right of challenge for breach of the general principles of EU law. As a consequence, rights that currently exist and are exercised—indeed, were exercised by our right hon. Friend the Secretary of State for Exiting the European Union—will in future not be available. That is an important point that the Government will have to consider during the passage of the Bill.
Mr Lidington
For the most part, those rights are used when they are given effect through specific items of European Union legislation, rather than in the abstract. My right hon. and learned Friend makes an important point, and it is true that after exit it will not be possible for an individual to bring a free-standing claim, or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law, except as those principles have been preserved by the Bill—which will be the case if those principles have been given effect through a specific piece of legislation. That position flows logically from the decision by the electorate to leave the European Union, because that does involve separating the United Kingdom’s legal order from the European Union’s legal order.
The issue of devolution has been the subject of much debate among Scottish Members of Parliament—
Lady Hermon
I am grateful to the Secretary of State for allowing me to intervene and help him with the general principles of EU law, which are respect for human rights and the principles of proportionality and non-discrimination. Those are principles that we in this country should be enormously proud of and embrace, instead of setting them aside. The Bill, in schedule 1, excludes anyone from relying on those general principles before a court, tribunal or public authority.
Mr Lidington
Those principles of human rights and non-discrimination are embodied in United Kingdom legislation and given effect by our courts. That was the situation 40 years ago, before we entered the European Union, it has remained the situation throughout our membership, and it will continue to be the position, unaffected by this Bill.
As for devolution, every single decision taken by the devolved Administrations will continue to be taken by them. The only question is how we best allocate to the UK Government and to the devolved Administrations the competencies and powers that will return to this country, because the devolution Acts were drafted in the context of this country’s membership of the European Union and the lists of devolved and reserved powers were drawn up against that background. For example, the common fisheries policy includes matters relating to the detailed management and regulation of fisheries, but it also covers EU agreements with third countries, such as the EU-Morocco fisheries agreement, and includes such matters as the UN convention relating to migratory fish stocks—international agreements that one might think should fall naturally to the United Kingdom Government. That will be a matter for continuing discussion between the United Kingdom Government and the devolved Administrations.
We shall need to come forward with some common frameworks to ensure, for example, that a Scottish farmer can sell some of his produce to customers in England or Northern Ireland without having to worry about two different sets of hygiene and food safety regulations, or that a Welsh paint manufacturer can sell freely anywhere in the United Kingdom without having to be concerned about different rules on the regulation of the chemicals in that paint. I am confident that the outcome of negotiations and continuing discussions with the devolved Administrations will be a significant increase in the powers being exercised by those devolved Administrations. That remains the Government’s intention. I can also say to my hon. Friend the Member for East Renfrewshire (Paul Masterton) that, yes, Ministers in the Department for Exiting the European Union and across Government will continue to talk to and listen carefully both to the views of Ministers in the devolved Administrations and to parliamentarians in the Scottish Parliament, the Welsh Assembly and soon, I hope, in the Northern Ireland Assembly.
Above all, the debate has centred on delegated powers, and I emphasise that the Bill already contains significant safeguards, which the debate has sometimes tended to overlook. Each of the four clauses that authorise secondary legislation has a defined purpose, and a statutory instrument made under such a clause cannot be made to do something else. It has to deliver something that is within the purpose defined in that clause. If we look at clause 7, for example, the power to make a statutory instrument is limited to something that will put right a failure or deficiency in retained EU law
“arising from the withdrawal of the United Kingdom from the EU.”
That power cannot be exercised for any other purpose. A Minister cannot make regulations because he dislikes the underlying policy or indeed because he dislikes the underlying EU law, but only when there is a problem with the operability of a piece of EU law that has been brought about by this country’s departure from the EU.
A similar condition applies to clause 8, which deals with our international obligations. There has been a lot of debate about clause 9, but its powers can be used only for the purpose of implementing the withdrawal agreement. The powers in clause 17 are limited to consequential amendments, and “consequential” has a long-established, tightly defined meaning in parliamentary practice and in law. The idea that there is some sweeping power in the Bill to rewrite the law of the United Kingdom is simply wrong. The statutory instruments may be used only for the purposes set out in the Bill.
In addition, the Government have included sunset clauses. The powers in clauses 7 and 8 lapse two years after exit day, and those in clause 9 lapse on exit day itself. The Bill also includes further safeguards in a list of exclusions from the scope of any delegated legislation, so none of the powers that grant secondary legislation can be used to make retrospective provision, to increase taxation, to create criminal offences or to affect the scope and application of the Human Rights Act 1998.
Despite the assurances incorporated in the wording of the Bill, very genuine, sincere concerns have been expressed on both sides of the House about whether there is sufficient parliamentary control over and scrutiny of how the powers will be used. [Interruption.]
Mr Speaker
Order. If the Secretary of State would be good enough to face the House, we would all benefit from his mellifluous tones.
Mr Lidington
It strikes me that there have been constructive comments and suggestions from a range of Members, including my right hon. and learned Friends the Members for Rushcliffe and for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Broxtowe (Anna Soubry), my hon. Friend the Member for Totnes (Dr Wollaston), the right hon. Member for Birkenhead (Frank Field) and the hon. Members for Vauxhall (Kate Hoey) and for Blackley and Broughton (Graham Stringer). Between Second Reading and Committee, the Secretary of State for Exiting the European Union and his team intend to discuss those suggestions further with colleagues on both sides of the House.
We accept that we need to get the balance right—for example, between negative and affirmative procedure and between debates in Committee and debates on the Floor of the House—and, as my right hon. Friend the Secretary of State for Exiting the European Union has already pledged, we wish to discuss further the issue first raised by the right hon. Member for Leeds Central (Hilary Benn) about linking the timing of SIs under clause 9 to the date of debates on the withdrawal agreement, although we will have to bear in mind the possibility that that agreement might be concluded only very shortly before the date of exit.
Mr Grieve
My right hon. Friend is discussing matters that will have to be considered in detail in Committee. A sensible programme motion has been tabled, but can the Government assure the House that, if more time is needed because, in truth, we have difficulty getting through the programme within the period specified, they will properly consider making more time available to the House?
Mr Lidington
We think that the 64 hours that have been guaranteed are reasonable, and they compare with the 39 hours and 17 minutes that the Blair Government granted on the Bill to ratify the Lisbon treaty. We have shown today that, where there is good reason to extend debate further, we are willing to consider it very seriously and carefully indeed. I hope my right hon. and learned Friend will take that assurance in the spirit in which it is intended.
I hope that the House will recognise that it is in the national interest that we put this Bill on the statute book and that we deliver the democratic verdict of the British people in a way that allows businesses and individuals to plan for their future, confident in what the law will be on and after exit day. I hope that the House will therefore give a clear vote for the Bill on Second Reading.
Question put, That the amendment be made.
Proceedings | Time for conclusion of proceedings |
|---|---|
First day | |
New Clauses and new Schedules relating to Clause 1, Clause 1 | Four hours from the commencement of proceedings on the Bill on the first day. |
New Clauses and new Schedules relating to Clause 6, Clause 6 | Eight hours from the commencement of proceedings on the Bill on the first day |
Second day | |
New Clauses and new Schedules relating to Clause 2, Clause 2, new Clauses and new Schedules relating to Clause 3, Clause 3, new Clauses and new Schedules relating to Clause 4, Clause 4 | Eight hours from the commencement of proceedings on the Bill on the second day |
Third day | |
New Clauses and new Schedules relating to Clause 5 or Schedule 1, Clause 5, Schedule 1 | Eight hours from the commencement of proceedings on the Bill on the third day. |
Fourth day | |
New Clauses and new Schedules relating to Clause 11 or Schedule 3, Clause 11, Schedule 3 | Eight hours from the commencement of proceedings on the Bill on the fourth day. |
Fifth day | |
New Clauses and new Schedules relating to Clause 10 or Schedule 2, Clause 10, Schedule 2 | Four hours from the commencement of proceedings on the Bill on the fifth day. |
New Clauses and new Schedules relating to Clause 12 or Schedule 4, Clause 12, Schedule 4 | Eight hours from the commencement of proceedings on the Bill on the fifth day |
Sixth day | |
New Clauses and New Schedules relating to Clause 7, Clause 7 | Eight hours from the commencement of proceedings on the Bill on the sixth day. |
Seventh day | |
New Clauses and new Schedules relating to Clause 9, Clause 9, new Clauses and new Schedules relating to Clause 16 or Schedule 7, Clause 16, Schedule 7, Clause 17 | Six hours from the commencement of proceedings on the Bill on the seventh day |
New Clauses and new Schedules relating to Clause 8, Clause 8 | Eight hours from the commencement of proceedings on the Bill on the seventh day. |
Eighth day | |
New Clauses and new Schedules relating to Clause 13 or Schedule 5, Clause 13, Schedule 5 | Four hours from the commencement of proceedings on the Bill on the eighth day. |
New Clauses and new Schedules relating to Clause 14 or Schedule 6, Clause 14, Schedule 6, remaining new Clauses, remaining new Schedules, Clause 15, Schedules 8 and 9, Clauses 18 and 19, remaining proceedings on the Bill | Eight hours from the commencement of proceedings on the Bill on the eighth day. |
European Union (Withdrawal) Bill
Tuesday 14th November 2017
(7 years, 11 months ago)
Commons ChamberEuropean Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 14 November 2017 - (14 Nov 2017)
18:51 - The Committee divided: - Ayes: 52 / Noes: 318 - Question accordingly negatived.
19:06 - The Committee divided: - Ayes: 318 / Noes: 68 - Question accordingly agreed to.
22:48 - divided: - Ayes: 296 / Noes: 316 - Question accordingly negatived.
23:03 - divided: - Ayes: 296 / Noes: 316 - Question accordingly negatived.
23:18 - The Committee divided: - Ayes: 295 / Noes: 316 - Question accordingly negatived.
Frank Field (Birkenhead) (Lab)
I beg to move, That the clause be read a Second time.
The Chairman of Ways and Means (Mr Lindsay Hoyle)
With this it will be convenient to discuss amendment 79, in clause 1, page 1, line 3, at end insert—
“(2) Regulations under section 19(2) bringing into force subsection (1) may not be made until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly signifying consent to the commencement of subsection (1).”
This amendment would make the repeal of the European Communities Act 1972 on exit day conditional on the Prime Minister gaining consent from the devolved legislatures.
Clause 1 stand part.
Government amendments 383 and 381.
Amendment 386, in clause 14, page 10, line 25, leave out from “means” to “(and” in line 26 and insert
“the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU”.
This amendment would require ‘exit day’ to be specified, for all purposes, in a separate bill seeking approval for the final terms of the withdrawal of the UK from the EU. It would therefore have the effect of requiring a statute on the withdrawal terms - whatever they might be - to be passed by Parliament before ‘exit day’.
Amendment 43, page 10, line 25, leave out
“a Minister of the Crown may by regulations”
and insert
“Parliament may by a majority approval in both Houses”.
This amendment together with Amendments 44 and 45 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill.
Amendment 6, page 10, line 26, at end insert
“but exit day must be the same day for the purposes of every provision of this Act.”
To prevent the creation of different exit days for different parts of the Act by SI.
Government amendment 382.
Amendment 387, page 11, line 24, leave out from “Act” to end of line 32 and insert
“references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU”.
This amendment is consequential on Amendment 386 and ensures that references to exit day in the Bill and other legislation operate correctly in relation to the time as well as the date of the United Kingdom’s withdrawal from the EU.
Amendment 44, page 11, line 25, leave out
“a Minister of the Crown”
and insert “Parliament”.
This amendment together with Amendments 43 and 45 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill.
Amendment 45, page 11, line 30, leave out
“a Minister of the Crown”
and insert “Parliament”.
This amendment together with Amendments 43 and 44 would empower Parliament to control the length and basic terms of transitional arrangements, and would allow Parliament to start the clock on the sunset clauses within the Bill.
Amendment 81, in clause 19, page 14, line 32, at end insert—
“(a) section 1(2);”.
This amendment is a consequential amendment resulting from Amendments 78, 79 and 80 to Clause 1 requiring the Prime Minister to reach an agreement on EEA and Customs Union membership, to gain the consent of the devolved legislatures and to report on the effect leaving the EU will have on the block grant before implementing section 1 of this Act.
The Chairman
May I first draw the attention of the Committee to a mistake on page 1 of the amendment paper? The name of the hon. Member for Keighley (John Grogan) should not have appeared as a supporter of new clause 49.
Frank Field
I rise to speak to the new clause in my name and all the other names that still remain on the amendment paper. Although I am limited to speaking to new clause 49, it is linked to new clauses 50, 51 and 52, for reasons that I will develop.
I wish to begin by declaring my sentiments in tabling this new clause and supporting the new clauses that are umbilically attached to it. I am a reluctant Brexiteer. I am too old to feel that I was born to bring us out of Europe, and I have not had one of those evangelical revivals in thinking that somehow life began again once we entered the Common Market and that my aim, purpose, being, and everything I breathed was towards getting us out of that organisation. That is not so.
In my own constituency and in the small amount of work I did nationally, I stressed that things were on a balance: we had to make a decision about Europe. We did not need more facts about Europe, but had to draw on our very natures—all that we had been taught in our culture and where, in our very being, we felt we stood in this country—to make the decision about whether we wished to leave or not.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
On a point of order, Mr Hoyle. In this new clause we are debating an exit date of 30 March 2019, yet grouped with it there are Government amendments to be voted on at a later date that put the exit date at 11 pm on 29 March 2019. There is a difference of an hour, and as far as I am aware the clocks only go forward on Sunday 31 March. Could you give some guidance to the movers of these amendments so that the arch-Brexiteers on both sides get their clocks and house in order?
The Chairman
Let us not worry too much about time because we are eating away at it at the moment. It is a matter to be decided in the debate, not for me to decide. When we get there, we will know better. Let us not take up more time now.
Frank Field
That was a good intervention. My new clause decides on British time when to leave, whereas the Government’s amendments are at the beckoning of Europeans. We have a very clear choice. I will willingly take interventions that are trying to trip me up in making this short contribution.
I fought the referendum campaign, as much as I could, as a reluctant Brexiteer. On balance, I thought that our country’s future would increasingly thrive outside rather than inside the European Union. I have always wanted to make a deal, although it is immensely sensible, in any negotiations, to make sure that the other side knows that one may be banking on and planning for no deal.
The next factor—I will touch on this again when we think of what the House of Lords might do to a Bill of this size—is that it has been very difficult for most of us to come to terms with what our role has been as MPs in a representative democracy, and with how we digest the fact that a referendum has taken place and the British people have spoken. How do we react in those circumstances, which I believe are unique and in no way comparable with any other parliamentary procedure that we deal with in this House?
As I said at the beginning, before I was helpfully interrupted, this new clause stands with three other new clauses. Together they present the Government with a clean, small, slimline Brexit Bill. By the time we get to the end of this process, they will thank the Lord that this life raft is in the Bill and they are able to get on it. In the new clause, we decide on the date—by British time, not European time—when we actually leave. That is our choice. It is about the beginnings of the freedom that we hope will flow—with difficulties, of course—from setting us on the course of leaving the European Union.
The second new clause simply ensures that all the laws and regulations come on to our statute book at that point in time—British time, not European time.
Angela Smith (Penistone and Stocksbridge) (Lab)
Will my right hon. Friend give way?
Frank Field
Can I just finish this point, and then I will willingly give way?
The third new clause is on how Parliament reviews those laws—those we wish to keep fully, those we wish to amend, those we wish to add to, and those we wish to kick out. It says that this House will decide how that process is done. I am sure that before we have finished our debate on this Bill in Committee, the Government will be agreeing with me on that. The Henry VIII stuff is an absurd way of going about this business, although as we get down to the mega-task of reviewing this, we may beg the Government for a touch of Henry VIII to get through a task of the size that will be before us.
Finally, given that we have real difficulties in completing a negotiation—
Frank Field
I said that I would give way as soon as I had finished explaining the new clause and the three new clauses attached to it. Finally, we need a safe haven. Speaking of which, I give way to my hon. Friend.
Angela Smith
Will my right hon. Friend not concede that an arbitrary date for Brexit could risk damaging the British economy if clear evidence emerges, as it already is, that hurrying Brexit may badly damage our manufacturing sector, our agricultural sector and our financial services sector?
Frank Field
I am supported by people whose constituents largely agree with my views, not theirs. How they deal with that is not my problem. I agree that it is a difficult problem, but that does not mean to say that one should have any particular solution to it. Generally speaking, the larger the majority, the more clearly Labour voters spoke about Brexit. [Interruption.] No, that is absolutely true. I will deal with my hon. Friend’s point in a moment, but it comes down to who we think we are dealing with. Are we playing a game of cricket, or have we got people who are trying—
Frank Field
I am just saying that—I am saying that we will be fighting for our lives, as I will set out if I ever get on to explaining the new clause fully.
Several hon. Members rose—
Frank Field
My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) wants to intervene.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I am confused by my right hon. Friend’s suggestion that all Labour voters supported his position, because the majority of them did not. The majority of Labour Members do not support his position either. That is an important point, so will he correct the record?
Frank Field
I happily add to the record. It makes some people’s circumstances more difficult, but I said that generally speaking, the larger the Labour majority in the general election and the bigger the turnout in the last general election, the one before that and the one before that, the more likely constituents were to vote leave.
Several hon. Members rose—
The Chairman
Order. We do not need everybody standing up at the same time. I am sure that if the right hon. Gentleman is going to give way, as he has already done, he will say so. Please, do not all keep standing up at the same time.
The Chairman
That includes Mr Farrelly, who has already had a good start to the day. Let us not continue in the same way.
Frank Field
I would also say, to qualify that general statement, that areas that I would love to represent—not my own constituency, but others—voted to remain, against the trend of Labour support, in the referendum.
Mr George Howarth (Knowsley) (Lab)
My right hon. Friend is making a case that I do not agree with, but he is doing so with his usual reasonable approach. I think he is probably right that at the moment, most people have not changed their minds. The reasons why they voted to leave are still, as far as they are concerned, unresolved, and they think that those things will be resolved by leaving. Suppose, however, that it emerges in the next 12 months that all the reasons why they voted as they did will not be realised, and that, on top of that, the economic consequences will be disastrous—what then?
Frank Field
I have only four small sheets of paper, and it has taken me all this time to get this far. I have an answer for my right hon. Friend—[Interruption.] Indeed, it seems to me that the Labour side needs educating about where Labour voters are. If my right hon. Friend can contain himself, I will take account of that. I emphasise his wisdom in saying that we do not know where these negotiations will end up. They are fraught, particularly because we are negotiating with a group of people who do not want us to succeed because they fear what will happen in their own countries if we do.
Mr Nigel Evans (Ribble Valley) (Con)
Did the right hon. Gentleman receive a pamphlet—paid for by the taxpayer—from the Government during the referendum, on the back of which they stated that they would carry out the wishes of the people via the vote in the referendum? Does he believe that by having a fixed date, which everybody knows, we will deliver what the people voted for?
Frank Field
I have to confess to receiving the pamphlet and throwing it in the bin immediately. I never believed that the sort of campaign we fought, with false truths on both sides, enhanced our standing as a political class. Neither did it address the very serious issues of what people thought about their own identity, their community’s identity, their country’s identity and their country’s position in the world, on which we all know that people take different views. The idea that a Government pamphlet was going to help us—dear God!
Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)
I note that my right hon. Friend qualified his earlier statement, but does he accept that at the last general election, more than 85% of Liverpool, Riverside constituents voted for the Labour candidate, and that 73% of them voted to remain? Does he accept that the people of Liverpool, Riverside have great wisdom, and that that ought to be followed?
Frank Field
If I did, it would mean that the voters of Birkenhead did not have wisdom, which is the very opposite of my hon. Friend’s point. I am not going to put my head in that noose.
Frank Field
No, I have given way once. This is a serious debate and, if I can make progress, I will willingly bring people in as we go along.
I wish to express disappointment with the Government’s strategy and their handling of the situation. I do not think it has the sense of importance, drive or coherence that the issue merits. I have argued, publicly and privately, that anyone who seriously compares this historic event to our fight for survival in world war two would follow the move that Churchill made on taking over from Chamberlain, when he established a war Cabinet in place of the existing ramshackle institutions. As I will explain in a moment, the new clause represents the beginning of a new negotiating hand, and I think we need a Brexit Cabinet. It should be small, and the Opposition should be offered places in it. The Opposition were offered places in the war Cabinet, and Mr Attlee and Mr Greenwood accepted those places. We should try to act in the national interest—[Laughter.] Hon. Members may laugh—
Several hon. Members rose—
Frank Field
Clearly, my suggestion is proving shocking to my right hon. and hon. Friends, but it will be a test of whether we are intent on the best possible terms, whether we have a clear position and whether we are putting our country first.
Alison McGovern (Wirral South) (Lab)
I thank my right hon. Friend and neighbour for giving way. Does he agree that the reason why we ought to have such cross-party co-operation is that this issue is not funny or a joke; it is about the future of our country? That is why we should listen to everyone in this place, and not just act in the narrow interests of the Tory party.
Frank Field
I think my hon. Friend ended her sentence rather early. I think she meant to say that we should try, difficult as it is, to put aside partial affections and concentrate on the national issue.
Several hon. Members rose—
Frank Field
I can hardly finish a sentence. To those to whom I have given way, I will not give way again until much later in my speech.
Frank Field
Well, try another point of order and see if it works.
I have a sense of disappointment. We have ceased the aerial bombardment of this Bill, and we are now engaged in hand-to-hand fighting over the nature of our leaving. The sentiments of my hon. Friend the Member for Wirral South (Alison McGovern), my constituency neighbour, about our trying to steer this debate in the national interest are crucial.
Several hon. Members rose—
Frank Field
No, I will not give way. I want other people to be able to contribute to the debate.
The second reason why I feel disappointment at the Government’s stance is that they are misreading the other side with whom we are negotiating. A British assumption is always to allow give and take, but we now have the Barnier rule of all take and no give. I will in a moment comment on how we should respond to that. Anybody who is serious, as all of us in the Committee have been, about wishing to award equal status and citizenship to EU citizens in this country know that those negotiations could have been over in half an hour. It was never ever the intention but for the other side to tick that off and say it was very good. Millions of people could have been put at their ease about their lives—both Britons living in the European Union and European citizens, as they will become, living in Britain—and we should consider that very carefully in our negotiations from now on.
The third disappointment is that the Government have produced such a Bill. When we were campaigning to leave, I thought we would have a Bill with two, three or four clauses to get us out. I know that the Government have been beguiled by its first title—the great repeal Bill—with some group of clever people thinking it can be great only if it is large, rather than aiming to be effective. I do not believe that a Bill of this size, timetabled as it will be to deliver it for the Government, actually stands much chance of getting through the House of Lords. Hence, my emphasis on the rescue launch waiting in the form of my four new clauses, including this new clause, which I have had such pleasure in moving.
Sir William Cash (Stone) (Con)
Does the right hon. Gentleman accept that the House of Lords, which is of course unelected and which itself decided to pass the European Union Referendum Act 2015, really has no justification whatsoever for attempting to obstruct, delay or undermine this Bill?
Frank Field
A very important lesson needs to be learned by some of those in the House of Lords who think they can wreck the Bill and wear us down so that Brexit never takes place. There is a very important convention—the Salisbury convention—and there is a very important difference between a referendum and a party’s manifesto. The Salisbury convention allows us to give and take on the important parts of a manifesto—the parts to which Governments rightly feel committed, and which they wish to pursue in Parliament so that when they stand for re-election they can say they have done the job they promised to do.
This is a different ball game. As I tried to say at the beginning, it is difficult for us all to come to terms with the role we have as MPs and the role we have in a post-referendum debate. I think their lordships should know that if they try to wreck the Bill, many of us will push the nuclear button. Labour wants to see the House of Lords go—I am surprised there was not a cheer at that point—but their lordships will sound their own death knell. Not one of them is elected, and none of them has any standing whatsoever in preventing the Government from inviting the House of Commons to implement the referendum decision, as we are doing today.
Simon Hoare (North Dorset) (Con)
I am following the right hon. Gentleman’s argument with close attention. Part of the leave argument was to take back control—not just to the House of Commons, but to the country and Parliament as a whole. Is he now trying to undermine the bicameral system?
Frank Field
No, not at all. We will be going late on days such as this, so if the hon. Gentleman would like to read my website, he will see I have outlined my views on House of Lords reform. They are different from those of most others. They are about its being elective, but through electing the great powers in this country—influences such as trade unions and so on—and certainly not through decisions by the party Whips. However, I dare not go down that path because it would take me away from the my new clause.
Frank Field
No, my hon. Friend has had one intervention via a point of order, and I think that is it for him.
Frank Field
So do I.
I think new clause 49 should be the start of a new negotiating position. Mr Barnier has told us that we have to put our money on the table and get serious within two weeks, and I think we should jump at this opportunity. In two weeks’ time, the Government should lay the outline of our agreement. I believe they should say over which decades they are prepared to meet our commitments, and at the end of the two weeks, we should say that at that point we will cease to pay any contributions to the European Union. I want the balance of power to move swiftly from their boot to our boot. From that date, two weeks hence, at the invitation of Mr Barnier, we should say, “Fine. Here’s the outline of the agreement. Here’s the beginning of the money settlement”—paid over a period of time, because there are pensions contributions and so on—“but from this day, until you start seriously negotiating with us”, which they have not, “there will in fact be no more money.”
It is wrong to think that all the £17 billion a year will be coming back to us. The £5 billion that Mrs Thatcher negotiated from the unfair formula is already coming back to us. That was watered down—by whom I will not say, but there is only so much one can say from the Labour Benches—but, nevertheless, £5 billion is coming back. There is also £4 billion coming back to promote anti-poverty programmes in this country. I wish to tell the Committee that I applied for money from those funds to feed people who are hungry and may be starving, but what did Mr Barnier and his group do? Nothing. We supposedly have huge sums of money coming back—spent at their direction—but that does not actually feed people who are hungry.
I want to end by saying that I shall push the new clause to a Division for a number of reasons. One is that it always seems to me better to gain an advantage when one can, rather than later: a bird in the hand is worth two in the bush. The Government are introducing their own timetable, as set by the European bureaucrats— whoever they are—instructing us when we might take leave of them, but I think we should decide today to leave on our terms and at a time of our choosing.
As I have said, the new clause should not be read in isolation, because it and the other three new clauses provide us with an alternative way of exiting without all the claptrap the Government have put in the Bill. I believe that, before the end of the negotiations, something like such a four-clause Bill will be adopted.
On the first and civilised intervention—the point of order—about timing, it is perhaps a fallacy to think of terms for oneself applying to terms for the nation, but I have never bought a house without having in the contract the date when it will be mine and on which I can actually move in. When I was elected to the House of Commons I knew that I would have a contract of up to five years, and I have never had a job without being given a starting date.
Hilary Benn (Leeds Central) (Lab)
My right hon. Friend’s analogy about buying a house falls down at the first hurdle, because nobody commits to a date to buy a house before they know what it is they are buying. My substantive point, however, is about the fatal weakness of his proposal, even though, as always, I respect the way in which he argues his case. When the Secretary of State appeared before the Select Committee, he told us that it is possible that the negotiations may go to the 59th minute of the 11th hour. That is undoubtedly possible. In those circumstances, does it really make sense to bind the hands of the country and those who are negotiating on its behalf to get the best possible deal, which is also the weakness of the Government’s own amendment 381?
Frank Field
As my right hon. Friend was kind to me about the house analogy, I say that I have always bought my houses, never inherited them. [Interruption.]
Frank Field
I have been corrected and I withdraw my comment, but the idea that the biggest decisions of our lives, such as that to buy a house, are the ones that we take the most time over is not borne out by any research whatsoever. I do seriously apologise to my right hon. Friend.
Mr Kenneth Clarke (Rushcliffe) (Con)
The right hon. Gentleman has been a political ally of mine in previous cross-party arrangements, but not on this occasion. He has dodged answering the perfectly serious point that the right hon. Member for Leeds Central (Hilary Benn) just put to him. As things stand, article 50 will take effect in March 2019 and we will leave. Anything in the Bill is superfluous to that. A problem could arise only if—and this is possible—28 member states all agree that they are near to a conclusion but that they require a few more days or weeks to settle it. Once we are going they will not want us to stay in much longer, because they will not want us around for the European Parliament elections. However, it would be utterly foolish if 28 Governments all agreed to extend the process and the British representative had to say, “But we’ve put into British law a timing that says, to the second, when we are actually leaving.” That seems to me a rather serious flaw in the proposed new clause.
Frank Field
The right hon. and learned Gentleman is such a good lawyer, but I wish he had read my new clause, because it notes the day rather than the minute that we will leave. Despite all the encouragement from Members behind me, I was so anxious to withdraw what I said about my right hon. Friend the Member for Leeds Central (Hilary Benn) that I forgot to address his substantive point, and the right hon. and learned Gentleman has reminded me to do so. If we look over our whole history in Europe, we will see that the idea that we finish any negotiations other than at the very last minute is almost unheard of. By including the time, we will be saying, “You will have to begin your shenanigans the month before rather than the month after.”
In conclusion, I am grateful for being allowed to move the second reading of this new clause, to remind people that it is part of a short exit Bill.
Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)
I am grateful to the right hon. Gentleman for giving way, because I know he is concluding. I want to make a simple point. The whole argument about having flexibility falls when we look at article 50 itself. It was very specific for a very simple reason, which is that the timescale determines that those who are negotiating must reach, or agree not to reach, an agreement. Simply changing the timescale will not allow them to reach an agreement; they have the time to do it. That is the whole point about compression—to get an agreement. That is why the date was prompted by article 50.
Frank Field
I have one last point to make. I thought that my proposed new clause merely implemented article 50, which we all voted for, to tell our constituents that we had—[Interruption.] Well, apart from one Member who voted against triggering article 50. [Interruption.] Apart from two or three—[Interruption.] Were there any more than four? Perhaps there were five, six, seven or eight.
I thought that what I had to say was so uncontentious that my speech would last only five minutes. I apologise to the Committee for the time I have taken. All the proposed new clause does is put on the statute book the actual timing of article 50, which we voted for in overwhelming numbers almost a year ago. I move the new clause in my name and the names of those on the amendment paper.
The Chairman
Before I call the Minister, I inform the Committee that he is not feeling well today and, for the sake of clarification, another Minister will come along later.
The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)
I am extremely grateful to you, Mr Hoyle. I very much hope that my voice makes it through these remarks.
I rise to support clause 1 stand part and to speak to Government amendments 381, 382 and 383. It may help the House and members of the public if I say that the decisions on those amendments will be taken on days seven and eight.
Clause 1 reads:
“The European Communities Act 1972 is repealed on exit day.”
It is a simple clause, but it could scarcely be more significant. In repealing the European Communities Act 1972, the clause will be a historic step in delivering our exit from the European Union, in accordance with last year’s referendum. I hope that all people on all sides of this issue can agree that the repeal of the Act is a necessary step as we leave the European Union.
Sir William Cash
Does my hon. Friend recall that the official Opposition voted against the Bill on Second Reading and therefore the repeal of the 1972 Act? They still claim that this Bill is not fit for purpose and that it usurps parliamentary sovereignty, when in fact it does exactly the opposite.
Mr Baker
I am very grateful to my hon. Friend and I look forward to seeing whether Opposition Members support clause 1 stand part.
If we were not to repeal the European Communities Act, we would still, from the perspective of EU law, exit the European Union at the end of the article 50 process, but there would be confusion and uncertainty about the law on our own statute book. For example, it would be unclear whether UK or EU law would take precedence if there was a conflict between them. The status of new EU law would also be unclear once the UK left the EU.
I intend first to set out briefly the effect of the European Communities Act on our legal system and the implications of its repeal. The UK is a “dualist” state, meaning that a treaty, even when ratified, does not alter our laws unless it is incorporated into domestic law by legislation. Parliament must pass legislation before the rights and obligations in a treaty have effect in our law. The European Communities Act gave EU law supremacy over UK law. Without it, EU law would not apply in the UK. The 1972 Act has two main provisions. Section 2(1) ensures rights and obligations in the EU treaties and regulations are directly applicable in the UK legal system. They apply directly without the need for Parliament to pass specific domestic implementing legislation. This bears repeating in the context of the clauses to follow.
John Redwood (Wokingham) (Con)
Does the Minister agree that this simple crucial clause is the way in which our democracy is completely restored and that once it has gone through and been implemented any matter that worries the British people can properly be the subject of parliamentary debate and decisions, no laws and treaties withstanding?
Mr Baker
I am very grateful to my right hon. Friend. He has perhaps anticipated my speech by a few paragraphs.
UK Ministers and Ministers in the devolved Administrations have made nearly 6,000 domestic regulations under section 2(2) on topics as disparate as air fares, public contracts and preserved sardines. The House, of course, has not remained supine in absorbing all this legislation. We have benefited from the tireless work of the European Scrutiny Committee, chaired so ably by my hon. Friend the Member for Stone (Sir William Cash). It has scrutinised a vast number of EU documents, supporting this House in holding Ministers to account when representing our interests in the EU. Its work has been of paramount importance in holding Ministers to account and maximising the voice of this House on EU matters. On occasions, deliberations in this House have influenced the laws adopted by the EU, but ultimately this House was, on every occasion, obliged to implement our EU obligations. We could not refuse new EU law because of our obligations to the EU.
Mr Kenneth Clarke
Does my hon. Friend accept that most of this legislation is proposed by the Commission, considered by the Council of Ministers, including a British Minister, and, nowadays, approved by the European Parliament before it becomes law? Can he name a significant European law or regulation that was opposed by the British Government at the time, which the Government are now proposing to repeal? Most Brexiteers cannot think of one.
Mr Baker
I am most grateful to my right hon. and learned Friend. I think the question at stake here is not whether there are legitimate processes in the EU; it is whether we approve of them. The one that I am always glad to bring to people’s attention is, of course, the ports regulation, which we will have to stick with all the while we are within the EU. It is perhaps unique in being opposed by the owners of ports, trade unions and, it seems, all parties involved with our strategic interests in ports. They are all opposed to that regulation. I very much look forward to the day that we can make our own decisions about how our flourishing private sector infrastructure works.
Mr John Baron (Basildon and Billericay) (Con)
Does my hon. Friend agree that those who accuse the Government of a power grab would be very happy for unelected EU officials to continue to exercise these powers, rather than an elected Government accountable to this elected Parliament?
Sir William Cash
In response, vicariously to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), may I point out that most decisions taken by the Council of Ministers are effectively made by consensus behind closed doors, with no record of who said what, how the decision was arrived at, or, unlike this House, with no record of any of the proceedings either?
Mr Baker
I am most grateful to my hon. Friend. I thoroughly recommend the report of his Committee relating to that subject.
I think what has been established in this sequence of interventions is that clause 1 could scarcely be of greater constitutional significance. It will repeal the 1972 Act on exit day, removing the mechanism that allows EU law to flow automatically into UK law, and remove one of the widest-ranging powers ever placed on the statute book of the United Kingdom. The repeal makes it clear and unarguable that sovereignty lies here in this Parliament.
Helen Goodman (Bishop Auckland) (Lab)
If the 1972 Act is repealed before the end of what Ministers call the implementation period but what I prefer to think of as the transition period, what will be the legal basis for our relations with the EU and our free trade agreements with the 57 third countries?
Mr Baker
Not just now. [Hon. Members: “Ooh!] I have given way quite a few times. I am now going to make some progress and get on to the amendments.
How we exercise this restored power in the future will be a choice for this place. The Government are clear that we want a smooth and orderly exit, achieved through continuity in the law at the point of exit, as we shall discuss at later stages. For now, I hope that all Members can agree that it is essential that clause 1 stand part of the Bill.
I now turn to today’s amendments. It is fitting that the first amendment debated in Committee is from the right hon. Member for Birkenhead (Frank Field). He has got to the heart of the matter of when we leave the EU.
Mr Baker
I will come to that point.
I listened carefully to the right hon. Gentleman’s speech, and I have great sympathy for the case he makes. I will just pick up on two points. First, on using our time, he has not of course given a time of day in his new clause. One thing I learned during my service in the Royal Air Force is the ambiguity that arises when one implies or deliberately specifies midnight, which of course can be taken as the beginning or end of a day. For that reason, his amendment is technically deficient. I hope that in due course he will choose not to press it to a Division, but will instead accept the Government’s set of amendments, including the consequentials.
Frank Field
I would love the Government to move an amendment specifying 23 hours and 59 minutes on the day we leave, but it should be on our time, not on others’ time or terms. Will they move that amendment to my new clause at a later stage?
Wera Hobhouse
Does the Minister not agree that exactly this argument is creating division between us and our European neighbours, which will make it very difficult to create a deep and special partnership?
Mr Baker
I do not accept that at all. When the Prime Minister wrote to the President of the European Council in March, she set in train the defined two-year process of article 50, which, unless extended by unanimity, will conclude on 29 March 2019. That is why the Prime Minister said in her Florence speech that the UK would cease to be a member of the EU on that day. That is the Government’s policy.
Several hon. Members rose—
Mr Baker
As I said, I would like to make some progress.
The Government have, however, listened carefully to the debate about the setting of exit day for the statutory purposes of the Bill. There has been some uncertainty about whether the exit day appointed in the Bill would correspond to the day the UK leaves the EU at the end of the article 50 process. The Government sympathise with this uncertainty. This is also an issue on which the Lords Constitution Committee opined in its report in September. It stated:
“We are concerned that the power to define ‘exit day’—a matter that is pivotal to the operation of the Bill—is unduly broad in its scope and flexibility, and that it is not subject to any parliamentary scrutiny procedure.”
Such concerns were further voiced by the hon. Members for Feltham and Heston (Seema Malhotra), for Cardiff South and Penarth (Stephen Doughty) and for Wakefield (Mary Creagh) on Second Reading, not least regarding the breadth of the power potentially to set numerous exit days. In fact, there has been a notable disconnect, as we perhaps saw earlier, between Labour Front and Back Benchers on this issue. While several of its Back Benchers have submitted amendments and raised concerns about exit day, its Front-Bench team seem to have refused to acknowledge the need to establish clarity.
We would like to put this issue to rest. We recognise the importance of being crystal clear on the setting of exit day and are keen to provide the certainty that the right hon. Member for Birkenhead and others are seeking. In the light of this, the Government have tabled amendment 381 to clause 14, along with the consequential amendments 382 and 383, which will set exit day at 11 pm on 29 March 2019. Of course, this is slightly different to his amendment, in that it sets a time as well as a date for exit.
Alison McGovern
I am sorry that the Minister is not feeling well, but does he understand how impossible it is for me to explain to my constituents that they can have certainty about nothing in relation to Brexit as the Government plan it, except, according to him, the date when it will happen?
Joanna Cherry (Edinburgh South West) (SNP)
I wonder whether the Minister is going to admit to the Committee that setting a date for exit is mere political window-dressing. The Prime Minister has told the House that if there is to be a transitional deal, which she wants, her understanding is that it will be under article 50. That means that we will be staying in the single market, staying in the customs union and subject to EU law during the transitional period, so this exit day is simply a sop to Back Benchers. When is the Minister going to tell them the truth?
Mr Baker
I will come to the implementation period in a moment, but one of the crucial points is that we need to become a third country in order to conclude our future relationship agreement. The Prime Minister set out in her Florence speech the outline of that implementation period, which would allow practical continuity under new arrangements that would enable us to be a third country and conclude the future relationship agreement.
Several hon. Members rose—
Mr Dominic Grieve (Beaconsfield) (Con)
I am most grateful to my hon. Friend. Does he recognise that there are two different issues relating to exit day? Some of the amendments were tabled to express the fear that there might be multiple exit dates. That is very different from fixing a day. Obviously, under article 50 there is an expiry date, but, as my hon. Friend knows, article 50 itself contains provision for a possible extension of the period if that is what is needed to conclude an agreement. That is why I find the Government’s amendment so strange. It seems to me to fetter the Government, to add nothing to the strength of their negotiating position, and, in fact, potentially to create a very great problem that could be visited on us at a later stage.
Mr Baker
My right hon. and learned Friend has made his point with considerable clarity. Of course I accept that the article 50 process involves certain provisions, but I should say to him that a number of learned voices in private expressed concern about the existence of a degree of elasticity in the sunsetting of the powers in the Bill, and, for that reason, were anxious for us to fix the exit date. I should also say to him that, while he made his point with his usual clarity, other Members expressed the view that we should put beyond doubt the time and the date when we leave the European Union, and that is what our amendment does.
Several hon. Members rose—
Mr Peter Bone (Wellingborough) (Con)
The Minister is making a very good speech, but what is not clear—and there is some media speculation about this—is whether, if amendment 381 is passed with the exit date confirmed as it is, the Bill allows that date to be changed subsequently by means of regulation.
Mr Baker
The answer to that is no. The point has been raised specifically in respect of the powers in clause 17, which relate to the consequences of the Bill’s enactment. I look forward very much to a full debate on those powers when we reach clause 17, but the short answer to my hon. Friend’s question is no.
Several hon. Members rose—
Mr Baker
No. I did say to my right hon. and learned Friend, and the Committee, that I was going to get on with it. If I give way to him, I will not make the progress that I need to make.
We said on Second Reading that we would listen to the concerns of the House, and our amendment delivers on that promise. Ultimately, the Government want the Bill to provide as much certainty as possible, and we are happy to consider amendments that share that goal. I hope that in the light of this the right hon. Member for Birkenhead (Frank Field) will be willing to withdraw his new clause, and hon. and right hon. Members with related amendments will withdraw them, too.
Chuka Umunna (Streatham) (Lab)
I am grateful to the Minister for being pretty frank with the Committee now, because if what he says is right, his Government’s set of amendments pave the way for no deal. If I am wrong about that, why did his predecessor, Lord Bridges of Headley, say that he did not believe it would be possible to sort out the divorce bill, the implementation period and the final deal on our withdrawal within the timeframe envisaged? What the Minister is planning for—he should be absolutely frank with the British people about this—is no deal, and he has no mandate from the British people to do that.
Mr Baker
I responded on this subject in a recent debate, and I refer the hon. Gentleman to everything I said on that occasion. He is wrong: we are planning to secure a deep and special partnership with the EU, and we intend to achieve that within the implementation period, which the Prime Minister described and set out in her Florence speech, and we look forward to passing the necessary legislation to do it.
Several hon. Members rose—
Tom Brake (Carshalton and Wallington) (LD)
Is the Minister aware that the chief financial officer of Aston Martin has said that it would be a semi-catastrophe if the UK went for no deal? Also, why will the Minister not allow the option for article 50 to be extended, to ensure that there was a deal if we were very close to reaching one on the date he has set?
Mr Baker
As a responsible Government, we are going to go through the process of making sure that our country is ready to leave the EU without a deal if that proves necessary. We will take the steps to be prepared, as a responsible Government should.
However, this Bill cannot pre-empt the negotiations by putting things into statute before they have been agreed. The Government intend the UK to leave the EU on 29 March 2019, and that is why we intend to put that on the face of the Bill, but we have always been clear that we will bring forward whatever legislation is necessary to implement the agreement we strike with the EU, which is why yesterday my right hon. Friend the Secretary of State announced the Withdrawal Agreement and Implementation Bill, which we will introduce once Parliament has had a chance to vote on the final deal.
This Government take their responsibilities seriously and are committed to ensuring that the UK exits the EU with certainty, continuity and control. It makes no sense to legislate for one piece of legislation on the face of another, and I therefore ask the right hon. Member for Normanton, Pontefract and Castleford not to press her amendment to a vote. With that, I recommend that clause 1 stand part of the Bill.
Paul Blomfield (Sheffield Central) (Lab)
I am pleased to speak to amendments 43, 44 and 45, which would give Parliament control over the length and basic terms of the transitional arrangements and allow Parliament to set the clock on the sunset clauses. These are the first of many amendments tabled by the Opposition that we will consider over the next few weeks, all of which have one purpose, which is to improve the Bill. Frankly, it is not helpful when Ministers—and, indeed, the Prime Minister over the weekend—seek to characterise scrutiny and accountability in this House as an attempt to thwart Brexit. It is not. We accept that the British people voted to leave the European Union. It might have been a close vote, but it was a clear vote. That is why we voted to trigger article 50. Whether we leave the European Union is not a matter for debate, but how we do so is crucial for the future of our country. The British people voted to pull out, but they did not vote to lose out. They look to Parliament to secure the best deal, and that includes not stumbling over a cliff edge in March 2019.
Mr Owen Paterson (North Shropshire) (Con)
Could the hon. Gentleman define the Labour party’s idea of leaving the European Union?
Paul Blomfield
I am surprised that such an ardent Brexiteer as the right hon. Gentleman does not understand what leaving the European Union involves. We do.
Until last Thursday, the debate on clause 1 looked fairly straightforward. The article 50 notification made our exit from the European Union in March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament. But then the Government did something needless: they tabled amendments 381 and 382, putting a specified exit date—and, indeed, a specified exit time: 11 pm, or midnight Brussels time—into the Bill. Their consequential amendment 383 seems to contradict the other amendments in some regards, which underlines the chaotic way in which the Government have approached the Bill, but taken together, the intention of the three amendments is clear.
Sir William Cash
The rather mysterious explanation that the hon. Gentleman gave to my right hon. Friend the Member for North Shropshire (Mr Paterson) needs some elucidation. Would he be good enough to explain whether leaving the European Union means repealing the European Communities Act 1972, and why Labour voted against the Bill on Second Reading?
Paul Blomfield
I would have thought that it would be as clear to the hon. Gentleman as it is to me that leaving the European Union does involve revoking the European Communities Act. I will go on to explain why we have concerns about the Government’s amendments and the different decisions within them.
Antoinette Sandbach (Eddisbury) (Con)
Did the hon. Gentleman understand, as I did, when the vote on article 50 took place, that the provisions outlined in article 50 would apply, including the ability of 28 nations to agree to extend the negotiating process?
Paul Blomfield
I did indeed, and I will come to that point later in my remarks.
I said that the intention of the three amendments is clear despite the confusion caused by amendment 383. It is clear, but it is needless because article 50, triggered on 29 March 2017, provides for a two-year exit timetable.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
Will the hon. Gentleman give way?
Paul Blomfield
No, I will make some progress.
There is therefore no question about whether the UK will leave the EU at the end of that period in accordance with the article 50 notification. So what is the purpose of the Government’s three amendments? Is it simply to appease extreme elements within the Conservative party, not thinking of the consequences for the country, or is it a deliberate decision to unpick the Florence speech, demonstrating that the freelancers in the Prime Minister’s Cabinet are actually in charge of policy?
Stephen Doughty
I suspect that it may be the latter. Given the chaos that the negotiations are in, the public will be wondering about the lack of progress. When the Government suddenly want to impose a guillotine, rather than use the article 50 process, the public may have good reason to be suspicious.
Paul Blomfield
I thank my hon. Friend for his intervention. The public have reason to be suspicious and worried.
Paul Blomfield
No, I will not. I want to make some progress, but I am sure that I will give the hon. Gentleman the opportunity to intervene later.
Whatever the reason for the Government’s decision, it is reckless and represents an extraordinary U-turn. The Minister said a few moments ago that it was important to give clarity on the issue of departure and that it was the Government’s fixed view, but that is not the view they held before last Thursday. In fact, for the past four months their position was represented by clause 14(1)—page 10, lines 25 and 26—which says that
“‘exit day’ means such day as a Minister of the Crown may by regulations appoint”
and by clause 19(1)—page 14, lines 41 to 42—which states that
“different days may be appointed for different purposes.”
Now, the Opposition thought that that was a sensible principle. We wanted Parliament, not Ministers, to agree the dates, which is why we have tabled amendments 43, 44 and 45. That principle makes sense, and I will outline why.
As I have said, our departure from the European Union is a settled matter. However, the Bill deals with three different issues: the date that the 1972 Act will cease to have effect; the cut-off point for the use of delegated powers; and the ending of the jurisdiction of the Court of Justice of the European Union. On that last point, there is a fundamental impact on the transitional arrangements. Labour has been clear about the need for a transitional period in order to prevent a cliff edge and to ensure that businesses do not have to adapt to two new customs and regulatory arrangements in quick succession. We need a transitional period on the same basic terms that we currently have in the single market and in the customs union.
Businesses and trade unions support that transitional period, and we were pleased when the Government caught up with us on that in September. In her Florence speech, the Prime Minister finally recognised its importance and said that
“people and businesses—both in the UK and in the EU—would benefit from a period to adjust to the new arrangements in a smooth and orderly way.”
She went on to say:
“Clearly people, businesses and public services should only have to plan for one set of changes in the relationship between the UK and the EU. So during the implementation period access to one another’s markets should continue on current terms and Britain also should continue to take part in existing security measures. And I know businesses, in particular, would welcome the certainty this would provide.”
Her spokesperson reiterated just yesterday that she gave businesses reassurance on agreeing a time-limited transitional or, as she prefers to describe it, implementation period as soon as possible. However, amendment 383 blows the prospect of a transitional deal on current terms out of the water. Put simply, if there is no role for the Court of Justice of the European Union, we will not be operating on current terms and the Prime Minister will be unable to secure an agreement with the EU27 for the transitional arrangements that she set out in her Florence speech.
Mr Rees-Mogg
Is not the difference between an implementation and a transition the whole point? If it is an implementation, we are implementing the consequences of having left; if it is a transition, we are transitioning from being inside the European Union to being, at the end of the process, outside. Therefore in the transition we would be de facto members of the European Union, on the basis that the hon. Gentleman is setting out, defeating the whole purpose of this Bill.
Paul Blomfield
Clearly, the transitional period is a bridge between where we are now and where we will be once we have left the European Union. The hon. Gentleman’s point is not relevant to the point I am seeking to make.
Paul Farrelly
I wanted to make this intervention on my right hon. Friend the Member for Birkenhead (Frank Field), but he would not take it.
I commend the speech of my hon. Friend the Member for Sheffield Central (Paul Blomfield), and I seek his opinion on new clause 49. The new clause is linked to other new clauses, but if it is agreed there is no guarantee that the other new clauses will be agreed. Passing new clause 49 would therefore do a grave disservice to this country. Will he make clear the Opposition Front Bench’s position on new clause 49?
Paul Blomfield
I am happy to clarify that we oppose new clause 49.
Whether in relation to new clause 49 or to the Government’s amendments, closing down the opportunity for effective transitional arrangements is deeply self-harming.
Mr Baker
I believe that the Labour party wants to have a smooth transition to a good quality future relationship, but I draw to the hon. Gentleman’s attention what the Prime Minister said in her Florence speech:
“Neither is the European Union legally able to conclude an agreement with the UK as an external partner while it is itself still part of the European Union.”
My point is that we need to become a third country before we can conclude the kind of future relationship that I think the hon. Gentleman would like us to have.
Paul Blomfield
I do not disagree with the Minister. It is precisely our point that, during the transitional period, we cannot disable the role of the Court of Justice of the European Union, otherwise we will not achieve the arrangement that we apparently both seek.
Joanna Cherry
The hon. Gentleman is making a powerful point, and I wonder whether I might help. I asked the Prime Minister what she thought the legal basis of any transitional deal will be, and she said that the EU takes the view that it will be article 50. When I was in Brussels with the Exiting the European Union Committee last week, I raised this issue at the highest level of the EU and was told that, yes, it is envisaged that during the transitional deal Britain will stay in the single market, in the customs union, within EU law, within the acquis and under the jurisdiction of the Court of Justice of the European Union.
Paul Blomfield
I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.
Mr Grieve
I am listening carefully to the hon. Gentleman. Is not part of the difficulty that there is a sense of people being disingenuous about the reality of the process of Brexit? Of course it is possible that, at the end of this, despite how we pass this legislation, the Government will come back with a withdrawal agreement Bill—the statute they have promised us—that does the very thing they will not admit at the moment: keep us within the jurisdiction of the Court of Justice of the European Union during a transitional period. Would it not be better, and would it not help us in our debates on this Bill, if we had a bit of honesty and clarity from all sides about the implications of withdrawal, about how we have to go about it and about the options—sometimes the lack of options—that may be open to us?
Paul Blomfield
I very much agree with the right hon. and learned Gentleman. Otherwise, we will face the nonsense of the Government introducing new legislation effectively repealing the repeal Bill, or a key part of it.
Mr Jonathan Djanogly (Huntingdon) (Con)
Further to the point of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on the difference between transition and implementation, we know for sure that it will be an implementation period because we will have to implement the withdrawal agreement. We do not yet know whether it will be a transitional period because we do not know, and will not know at the point of Brexit, whether we will have any final deal to implement.
Paul Blomfield
The hon. Gentleman makes a fair point, and I will now make some progress.
I was at the point of talking about why closing down the opportunity for effective transitional arrangements would be deeply self-harming. As the director general of the CBI, Carolyn Fairbairn, said just last week,
“The message from us, from business, is more certainty quickly particularly around transition, particularly in the next four weeks”.
The Government amendments undermine the prospect of a transitional deal and create more uncertainty. The CBI, the British Chambers of Commerce, the EEF, the Institute of Directors and the Federation of Small Businesses came together to call for a transitional deal, saying:
“We need agreement of transitional arrangements as soon as possible, as without urgent agreement many companies have serious decisions about investment and contingency plans to take at the start of 2018”.
They continued:
“Failure to agree a transition period of at least two years could have wide-reaching and damaging consequences for investment and trade”.
It will also mean lorries backing up at Dover, because the adjustments necessary to avoid that cannot be physically put in place within 15 months, as I am sure everyone would agree. For the same reason, it will mean a hard border in Northern Ireland, with all the problems that that would create.
The Government’s approach is simply not in the national interest, and it closes down the flexibility that we might need. If negotiations go to the wire, both we and the EU 27 might recognise the need for an extra week, an extra day, an extra hour, an extra minute or even an extra second, as the right hon. and learned Member for Rushcliffe (Mr Clarke) pointed out, in order to secure a final deal. But that agreement would be thwarted by the Government’s having made it unlawful for themselves to do what they would want to do at that point.
The Prime Minister has consistently talked about parties working together in the national interest, and we are up for that—we have tried to be constructive; we have scrutinised and identified gaps; we have offered solutions; and on this crucial issue we seem to be in the same place as at least some members of the Government on the need for an effective transitional period. So let me make an offer to the Government. If they withdraw amendments 381, 382 and 383, and work with us on an alternative that affirms a departure date in line with the article 50 process but without destroying the chances of transitional arrangements, we are happy to look at that and work with them on it. If they do not—
Ian C. Lucas (Wrexham) (Lab)
Does my hon. Friend agree that the real way in which the Prime Minister could reach out is by making it clear that she accepts the jurisdiction of the ECJ for the implementation period? That would resolve a lot of her problems.
Paul Blomfield
My hon. Friend is absolutely right. The reckless ideological red line on the ECJ has got us into many problems—not only on this, but on the membership of Euratom and in many other ways.
If the Government cannot withdraw their amendments and engage in that process with us we cannot support them, because of the impact on the economy, jobs and livelihoods, as we would plunge over the cliff edge. I should also say that we cannot support amendment 79. We believe the Bill should operate on the presumption of devolution. My hon. Friend the Member for Darlington (Jenny Chapman) will set out our position in greater detail in subsequent days.
The Government have had months to repair this deeply flawed Bill. They could have come forward with amendments on workers’ rights, environmental protection, the charter of fundamental rights and limiting the scope of delegated powers, but instead they have chosen to come to this House with a gimmick on the departure date. This gimmick is about the Prime Minister negotiating with her own party, rather than trying to get a Brexit deal that prioritises jobs, the economy and the livelihoods of our people. The Government’s amendments are a product of the divisions at the heart of this Government on their approach to Brexit—divisions that are causing chaos, and this chaos is threatening our economy. We have a Prime Minister so weak that she is trying to tie her own hands behind her back to appease the extremists within her party.
Paul Blomfield
No, I will not.
Rather, I should say that the Prime Minister is letting the Foreign Secretary and the Environment Secretary tie her hands for her. She is putting internal party management before the national interest. This country deserves better, and we are offering it.
Mr Kenneth Clarke
I abstained on Second Reading and I voted against the timetable motion. I felt it was not possible to vote against Second Reading because a technical Bill of this kind is certainly required for when we leave the European Union, to avoid the legal hiatus and total uncertainty that would otherwise occur about what law actually applies in this country. I abstained rather than supported the Bill because I feel that, for many reasons that will become clear in the days of debate to come, the Bill goes far beyond its original purpose and is drafted in such a way as to try to deprive Parliament of a proper vote and say on perfectly important features. I hope that all that will be corrected by a Government who we have been assured—I accept this—are going to listen to the debate and see what is required and what is not.
I wish to touch briefly on two features of this debate, the first of which is the repeal of the European Communities Act 1972. There are only two Members left in the House of Commons who were here when the European Communities Act was passed, and I am glad to say that we are both consistent. The hon. Member for Bolsover (Mr Skinner) and I continue to vote against each other on all matters European, and we always have done. I always assure the Conservative Whips that they can look forward to the hon. Gentleman supporting them on most of the issues on which I vote against them, and I am sure that that will continue to be case.
On a serious note, the European Communities Act was passed on a bipartisan basis, which I helped to negotiate as a Government Whip—that is, Labour rebels supported the majority of the Conservative party to get us in. Before everyone deplores it, let me say that I do not think it has turned out to be a harmful piece of legislation at all. Apart from the predictable people—my right hon. and hon. Friends on the Back Benches—no one has ever sought to repeal it. The idea, which is very popularly put forward by the UK Independence party and others, that the Act has led faceless grey Eurocrats to produce vast quantities of awful legislation and red tape, is one of the biggest myths of our time. I pay tribute to Nigel Farage’s campaigning abilities. There is absolutely no doubt that he is the most successful politician of my generation, because he has persuaded a high proportion of the population that that is exactly how it runs. No doubt they are all looking forward to having bent bananas again once we have repealed all these pieces of legislation. I once fought an election in which quite a lot of my constituents had been persuaded that the Eurocrats were about to abolish double-decker buses. It took some considerable time to try to refute that rather worrying belief.
Mr Paterson
My right hon. and learned Friend’s stand on this issue has been completely consistent for decades, but can he stand up before the Committee and justify staying within the common fisheries policy on ecological, environmental, economic or social grounds?
Mr Clarke
I look forward to seeing what a British fisheries policy is going to comprise. This is outside the scope of the debate, so I shall be as brief as I can be, but the average fisherman I meet seems to believe that if we exclude foreign ships from our waters, we can give up all this scientific stuff about conserving stocks and there will no longer be any quotas. That is the usual argument put to me. Of course, most British fish is sold in the European Union—it is a very important market for us—and it is of course inconceivable that EU countries could be so vicious as to react to our throwing their ships out by not buying the fish that we catch. No doubt in due course a more rational British fisheries policy will emerge, and no doubt we will debate it in a more comfortable context.
Sir William Cash
Indeed. I wish to challenge my right hon. and learned Friend on his assertion that the manner in which the Council of Ministers has been operating has been adequately democratic and transparent. Can he please explain to us, from his own extensive experience, how it works and will he deny that, for the most part, it is done behind closed doors and that it is done by consensus, so nobody knows who decides what, how and when?
Mr Clarke
Under the Major Government, we introduced a process whereby parts of the European Council meetings were held in public. The Council of Ministers do hold public sessions, and an attempt was made to reach decisions in public sessions. It probably still goes on. [Interruption.] It does not amount to very much.
Mr Clarke
No, let me finish my answer. We did try to tackle this criticism. What happened was that each of the 28 Ministers gave little speeches entirely designed for their national newspapers and television, and negotiations and discussion did not make much practical progress. When the public sessions were over, the Ministers went into private session to negotiate and reach agreement. I used to find that the best business at the European Council was usually done over lunch. I have attended more European Council meetings than most people have had hot dinners. The dinners and the lunches tended to be where reasonable understandings were made. There were very few votes, but Governments made it clear when they opposed anything. When the council was over, everyone gave a press conference. It was a slightly distressing habit, because some of the accounts of Ministers for the assembled national press did not bear a close resemblance to what they had been saying inside the Council. I regret to say that some British Ministers fell into that trap. British Ministers and Ministers of other nationalities who had fiercely advocated regulating inside the Council would hold a press conference describing their valiant efforts to block what had now come in, which confirms some of my hon. Friend’s criticisms.
The fact is that most British Governments made it clear what they opposed and what they did not. If a regulation was passed in their presence, they had to come back here to explain why they had gone along with it. Now, that is enough on the European Communities Act.
Anna Soubry
Does my right hon. and learned Friend agree that, notwithstanding what happened in the past, the reality is that we have had the referendum and 52% have voted to leave, so it is now imperative that we all come together as much as we can to get this right? We need to get the best deal and the best legislation to deliver that deal. Most importantly, we must return sovereignty to this Parliament, which should have its proper meaningful vote and say—deal or no deal.
Kevin Brennan (Cardiff West) (Lab)
Will the right hon. and learned Gentleman give way?
Mr Clarke
I will in a second. I can assure the hon. Gentleman that I am trying to be brief.
I made this point once in an intervention, but it is an extremely serious matter. When the Government produced this technical Bill to stop the legal hiatus, they saw no reason to put any reference in it to our departure date from the Union. They had reason: there was no reason to put it in. Article 50, supported—despite my vote against—by a large majority of the House of Commons, sets the date of 29 March 2019, and the whole Bill proceeded on that basis. But in the past few days, partly in response to the new clause of the right hon. Member for Birkenhead (Frank Field), the Government have suddenly produced the most precise amendments, tying down our departure to the second.
With great respect to the right hon. Gentleman, his new clause could easily have been defeated: the Labour party would have voted against it; I would have voted against it, for what it is worth; and the Scot nats and the Liberals would have voted against it. Even the Government trying to apply their Whips to get it carried—if they had been foolish enough to do so—would have had a job getting a majority for his new clause. So I do not think that it was fear of the right hon. Gentleman, despite his formidable oratory, that caused the Government to table their amendments. What has happened is that they tried to make a concession to the pro-Europeans—the more moderate Government Back Benchers—by conceding the obvious common sense that, when we get there, we will have to have a meaningful, lawful vote on whatever deal is produced and that we will have to have legislation to move to the final period. It is not a great concession.
With great respect, the Government have not quite got it right yet, as we discovered the other day. All these great processes could take place after we have already left, particularly if the Government’s amendments are passed, which increase that risk. But they made what might have been seen by some as a dreadful concession to—of all people—my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Broxtowe (Anna Soubry). Shock! Horror! What kind of press would that produce; what kind of reaction from the fourth row below the Gangway behind me? So somebody was urged to bring something that could be thrown as a sop to the Foreign Secretary and the Environment Secretary, and produced this ridiculous Government amendment. But it is not just ridiculous and unnecessary; it could be positively harmful to the national interest.
Kevin Brennan
Despite what the right hon. and learned Gentleman just said, is not it fortunate that the Government have time to rethink this? It has already been made clear that the Government and the Opposition will oppose the new clause of my right hon. Friend the Member for Birkenhead (Frank Field). The Government amendment on the matter will not be considered until the eighth day in Committee. Therefore, is not there ample time for the Government—without losing face—to listen to the right hon. and learned Gentleman’s good sense and withdraw their amendment before that time?
Mr Clarke
I will not try to emulate the hon. Gentleman’s eminently sensible advice. By the time the Government have to concede this point, which I trust they will, we will all have forgotten the slightly odd circumstances in which this amendment was produced. He sums up the situation.
It is quite unnecessary to close down our options as severely as we are with this amendment, when we do not know yet what will happen. It is perfectly possible, on all precedents, that there is a mutually beneficial European and British need to keep the negotiations going for a time longer to get them settled and not to fall into the problems this Bill was designed to address.
Heidi Allen (South Cambridgeshire) (Con)
Will my right hon. and learned Friend give way?
Mr Clarke
I am going to conclude now. I apologise to my hon. Friend.
Other things that have come up in this debate are extremely important and need to be returned to—and will be returned to—many times in the Bill’s Committee stage. The whole question of the obvious need for a transition stage, and the obvious need for a transition stage to continue with our relationship on its present terms, until the new terms have been clarified and so business can run smoothly, must be reflected in every word of this Bill, and we must not seek to put obstacles in the way.
The Florence speech was a most significant step forward—indeed, it was the only significant step forward that the British have so far taken in the whole negotiating process. I do not know—I suspect, but I do not know—whether there are amendments to the Bill whose main efforts are devoted to trying to step back again from the Florence speech, but just in case, I hope that the Government will welcome all efforts to put the spirit of the Florence speech, and indeed its content, into the Bill.
I hope that we will not have these necessary and detailed discussions, of which this debate is just our first, somehow interfered with or shot down when the criticisms get difficult by people saying, “Oh, you’re remoaners. You’re trying to reverse democracy. You have been instructed by the people to leave Euratom. You have been instructed by the people to reject the European Court of Justice.” The referendum—I have no time for referendums personally—certainly settled that the majority wanted to leave the European Union. It settled nothing else. As nobody expected leave to win—including the leave campaigners, who would have taken no notice of the referendum had they lost it—nobody paid any attention to what leaving actually meant in practical, legal, economic policy and business terms, which it is the duty of this House to debate. We had no instructions.
When anybody mentioned problems of trade, investment and jobs, which are only part of the problem, although a hugely important part, they were waved away by leave campaigners, including the leading leave campaigners. The present Foreign Secretary dismissed all that—it was the politics of fear. Trade would carry on just as before. Investment would flow just as before. That was what the public were assured and what most of them believed, whichever way they eventually voted.
Well, even the Foreign Secretary is going to have to read his brief and study the basis upon which international trade is conducted in the modern, globalised economy. We are going to have to avoid a House of Commons, which universally expresses a belief in free trade, quite needlessly putting protectionist barriers, by way of tariffs, customs procedures and regulatory conditions, between ourselves and our biggest and most important market in the world.
I look forward to hearing my hon. Friend the Member for Stone as the debate continues. I have listened to him, and greatly enjoyed listening to him and debating with him, for many years on this subject. He now represents orthodoxy and party loyalty. He now argues there is too much parliamentary debate and that we should not have votes on this—it has all been settled by the voice of people. I am the rebel. I espoused the policies that the Conservative party has followed for the 50 years of my membership of it until we had a referendum 18 months ago, and I regret that I have not yet seen the light. He and I, like the hon. Member for Bolsover, remain consistent; we are probably each of us wrong. In the course of this, there are some very, very serious issues to be settled in this Bill. I ask the Government to reconsider silly amendments that were thrown out because they got a good article in The Daily Telegraph but might eventually actually do harm. [Applause.]
Stephen Gethins (North East Fife) (SNP)
It is an absolute privilege to follow the right hon. and learned Member for Rushcliffe (Mr Clarke). I welcome the applause from those on the Labour Benches. [Interruption.] Yes, some of them.
Over the weekend, we passed the halfway mark between the EU referendum and actually leaving the European Union. It is difficult to argue that over those 500-plus days we have spent that time well, that the Government have a clearer idea of where we are, or that the promises made by the Minister and his colleagues in Vote Leave have come to pass or are any closer to reality than they were when they made them. We are certainly no closer to the post-Brexit utopia that we have been promised.
Those looking back on these debates in years to come will, as well as admiring the speech by the right hon. and learned Member for Rushcliffe, do so with a sense of bewilderment. Not only is this Parliament set to approve a Bill, if it goes through, that most Members seem to think is a bad idea—most Members think that leaving the EU is a bad idea—but we are being asked to make significant changes with an extraordinary paucity of information. No other piece of legislation may have been forced through on the basis of such a small amount of information. It is astonishing that 500 days on the Government remain clueless about the impact of their plans. We have still not seen the impact assessments that this Parliament voted for and that we were promised. That would have been quite useful ahead of this debate, had this Government been listening to Parliament.
All this is coming from Conservative Members who wanted to bring back decision making, power and so-called sovereignty to the House of Commons. Clearly, after all this time, either the impact assessments are being hurriedly rushed together right now or the Government are too feart to share them—that means too scared to share them, for the benefit of those on the Front Bench. Last night’s botched efforts to try to win support illustrate the desperate situation in which the Government—and, frankly, this Parliament—find themselves. We have been given a choice between approving a really bad deal or a really, really bad deal. That is no choice at all and one that we should avoid at all costs.
The right hon. and learned Member for Rushcliffe raised an important point about promises that were made. There is a point here about accountability. Good governance in any Parliament—any legislature—relies on being accountable. The whole idea of why those of us from Scotland travel down here while those from elsewhere have to make their way here every single week is to hold the Government to account. One of the principles laid out in the Parliamentary Control of the Executive Bill brought forward in 1999 by the Secretary of State for Leaving the EU, who is not in his place at the moment, was that Government could not sideline this place. I wonder whether this Government would be in their current pickle had the Secretary of State’s Bill been passed in 1999. Accountability is sadly lacking. Parliamentary control should go deeper than even beyond June 2016. All of us here should be accountable for the commitments that we make ahead of any election or any referendum. All of us should do our best to implement the manifesto on which we were elected. Regardless of how much we may disagree with each other, we have a responsibility to our electorates and we are accountable to them.
I am left in a quandary. I will happily take an intervention from a Government Member if they can tell me this: if this place is accountable—if only!—who is accountable for providing £350 million a week to the NHS? The Government deny that they are. Who is accountable for giving Scotland lots of new powers, including powers over immigration? And who is accountable for the full access to the single market that many in Vote Leave promised? If only the EU had been successful in getting rid of double-decker buses, it would not have been so easy to splash promises across the sides of them. I would happily take an intervention about accountability for those things.
Antoinette Sandbach
Would the hon. Gentleman like to add to his list the comments of those such as Dan Hannan, who argued for leave? He said, “Don’t worry, you can vote to leave because we will stay in the single market and the customs union.”
Stephen Gethins
The hon. Lady makes an excellent and principled intervention. To double down on that, I will quote the leader of the Scottish Conservatives. The problem is that I cannot quote her directly; I will have to paraphrase what she said, because if I read out the quote, I would be held to be out of order in this place. She called into question the veracity of claims on costs in terms of the EU, and the veracity of claims made by people who are in government about Turkey’s EU membership and an EU army. I am sorry that I cannot quote her directly, but I would find myself in a bit of bother if I did.
Mr Rees-Mogg
Is the hon. Gentleman aware of the work done by Economists for Free Trade, which states that the £350 million promised to the NHS is fundable? Is he aware of the agreement yesterday at the European Union on a European army? Both those things can easily be answered.
Stephen Gethins
If only the Government had seen the hon. Gentleman’s talents, he could have been in government implementing these changes. When it comes to increasing funding for the NHS, I look forward very much to the conversations that he and I will have as we pass through the same Lobby in an effort to get the health funding that was promised by people who are now in government.
Stephen Doughty
Is the hon. Gentleman aware that, as we have seen today, the hon. Member for North East Somerset (Mr Rees-Mogg) has his supporters in the Cabinet? The Department for International Trade was gleefully retweeting—until it deleted the tweet—the speech that he made earlier, which called for a race-to-the-bottom, low-regulation Britain.
Stephen Gethins
The hon. Gentleman makes an excellent point, as he always does on these matters, even though he and I may not agree on much. Ruth Davidson and I do not often agree on much either, but she was right that we deserve the truth. This place deserves accountability over the promises that have been made. I wonder whether the Minister, who is in his place and who made those promises as part of Vote Leave, will address the question of what will happen about these promises. They were made to the people before they voted in a plebiscite, and he has some responsibility for that.
Stephen Gethins
I will give way to the hon. Lady, and then to the Minister.
Wera Hobhouse
Does the hon. Gentleman agree that people voted to leave the EU because they wanted a better future? They did not vote for Brexit at any cost, including the cost of democracy.
Stephen Gethins
The hon. Lady makes a good point. I will take an intervention from the Minister, since I mentioned him, and then I will make progress with my speech.
Mr Baker
I hope that the hon. Gentleman will read the report published by the Treasury Committee during the referendum campaign. The report, which has my name and that of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on it, calls into question the veracity of claims on both sides of the campaign.
Stephen Gethins
The Minister is trying to absolve himself of responsibility for spending on the health service. If only he had done that before the EU referendum. If only he had stopped people putting it on the side of a bus. It is extraordinary, because those Vote Leavers are Ministers now. They are in the posts that they wanted, and they need to take a bit of responsibility and deliver on their promises. If Labour get into government, Conservative Members will quite rightly expect them to deliver on their promises.
Stephen Gethins
I will not give way at the moment; I will make some progress, as I promised I would. This is the question: in any future referendum on any issue, are we all free to say whatever we like, because nobody will be held to account for what has been said?
Stephen Gethins
Not at the moment, because I made a promise. Surely Members from all parts of the House must recognise the damage that has been done to politics as a whole by the empty promises that were made by Vote Leave. Frankly, that is one of the many reasons why this Bill deserves to fall.
The right hon. Member for Birkenhead (Frank Field) made a good point about compromise. In a Parliament of minorities, we need to have compromise. It is almost a year since the Scottish Government published their compromise, under which we would have remained part of the single market—the single market was mentioned by the hon. Member for Eddisbury (Antoinette Sandbach). Leaving the European Union is not something I want or wanted, and it is not something for which my constituents or my nation voted, but the nature of compromise is one of give and take.
Remaining part of the single market is a compromise suggested not just by the SNP but by experts—on these Benches, we still listen to experts—and by members of other political parties, and it was pushed for by the Secretary of State for Scotland and the leader of the Scottish Conservatives as well. I urge Members to look at that suggested deal. Under our amendment 69, instead of our crashing out of the European Union, we would retain membership of the EU until we can sort this out. We will also be backing amendment 79, from our Plaid Cymru colleagues, because it is important that democracy does not begin and end in this place, and the devolved Administrations should have a key role as we go through this process. We are now in the situation where no deal is becoming more and more of a reality, as I will mention in my concluding remarks.
Mr Evans
The hon. Gentleman will remember that the former Chancellor said during the referendum campaign that should we leave the European Union, we would be leaving the single market. That was made absolutely explicit. The hon. Gentleman has spoken about future referendums, and he wants a second referendum in Scotland. Should the Scottish people vote in such a referendum by 52% to 48% to leave the United Kingdom, will he, after much discussion, argue for a third referendum?
Stephen Gethins
This is extraordinary, isn’t it? Something the Scottish Government had the decency to do before the independence referendum was to produce a 670-page White Paper. There are Members in the Chamber—I am looking at the hon. Member for Edinburgh West (Christine Jardine)—who did not agree with it. She campaigned for a no vote, and I respect her for doing so, but we had the courage of our convictions and laid out what we stood for. The mess we are in today is because the Conservatives did not have the courage of their convictions and did not lay out what voting to leave the European Union would mean.
A no deal would mean 80,000 jobs gone in Scotland. A city such as Aberdeen would lose £3.8 billion, and Edinburgh would lose £5.5 million, while there would also be an impact on rural areas. I welcome what the Prime Minister has said on security issues—that we should pull together—but with no deal we would lose access to EU security databases in combating cross-border crime, which would be grossly irresponsible.
Lady Hermon (North Down) (Ind)
May I just say that from the perspective of Northern Ireland, no deal would be absolutely disastrous? It would inevitably mean a hard border. As one of those who grew up in Northern Ireland through 32 years of violence, killing and mayhem, I am not prepared to sit in this Chamber and allow the House to go down a no deal route, which would endanger people, UK border officials and Police Service of Northern Ireland officials along the border. It is imperative that we have a deal.
Stephen Gethins
I thank the hon. Lady for her intervention. Hon. Members on both sides of the House would do well to listen carefully to her words. Northern Ireland has been vastly overlooked and it continues to be overlooked, and the hon. Lady makes an excellent point. One thing that concerns me and should concern Members on both sides of the House is that we have a no deal scenario, with Ministers playing Russian roulette with our futures—the futures of people in Northern Ireland and across the United Kingdom—as well as a slash-and-burn approach to politics that will profit absolutely nobody whatsoever.
I will conclude by saying that we may disagree on many issues, but we come to this place hoping—I respect Members as they do this—that we will leave our constituencies, our respective nations and the UK a little bit better off. By backing the Bill with such a lack of preparedness, we will be doing no such thing: we will not be leaving future generations better off. So weak are the arguments of those who back leaving the EU—I have heard this not so much from SNP Members, because Scotland voted to remain, but from Labour, Conservative and other colleagues—that they question why we are tabling amendments rather than challenge us on their substance. We will seek to amend this Bill as it goes through the House and to find common cause with colleagues from across the House. However, we know that what we are trying to achieve, even if we do get common ground, is to make this situation not better, but less bad. That is not a situation in which any Member should ever find themselves in this House.
I urge Members to reconsider and I urge the Government to press the reset button. There is far more at stake than the future of this Government or, indeed, that of any Member of this House.
Sir William Cash
I want to start by simply outlining that, contrary to what the hon. Member for North East Fife (Stephen Gethins) has just suggested about there being weak arguments for why we should leave the EU and repeal the European Communities Act 1972, it is absolutely essential that we do so if we are going to have a self-respecting, self-governing democratic country. The Bill and this whole issue are about one main question, namely democracy, which is what everything else necessarily flows from. All the economic arguments and questions relating to trade and other matters are ultimately dependent on the question of whether we have the right to govern ourselves in this sacred House of Commons. That is the basis on which the people of this country make decisions, of their own free choice, in general elections—whether it is to vote for the Labour party, the Liberal Democrats, the SNP or the Conservative party—and then a decision is made in this House as to how they will be governed.
I repeat what I have said: we have just had Remembrance Day. I simply want people to reflect for one moment on the fact that those millions of people who died in both world wars died for a reason. It was to do with sustaining the freedom and democracy of this House.
Chris Bryant (Rhondda) (Lab)
Does not democracy presume that a Government would listen to the will of the House of Commons, whose Members are individually elected by their constituencies? Would it not be slightly odd, therefore, to proceed with the Bill without taking out the Henry VIII powers?
Sir William Cash
Put simply, on the European Union Referendum Act 2015, which was a sovereign Act of this House—the point that the hon. Gentleman has just made—the House of Commons agreed, by six to one, that it would deliberately transfer to the people the decision whether to leave or remain in the European Union. Unless that Act is repealed, I do not believe that that decision should be returned to by the House.
Mike Gapes (Ilford South) (Lab/Co-op)
The hon. Gentleman has referred to the millions of people who died in two world wars. Those two world wars took place before the existence of the European Union and we in Europe, including this country, Germany and France, have lived in peace for decades. Is not it the case that France, Germany and other countries will now never, ever go to war because of the European Union?
Sir William Cash
The answer to the hon. Gentleman’s question is that no two democracies have ever gone to war with one another. I declare a personal interest in this issue because my father was killed in Normandy, fighting for this country, and I am proud that he got the Military Cross for that reason. This is something that many people in this country really understand and believe. It is not easy to explain, but it is to do with the fact that people understand the real reasons that self-government is so important.
The proposal in the European Communities Act 1972, which we are now repealing, was the greatest power grab since Oliver Cromwell. It was done in 1972 with good intentions. I voted yes in 1975 and I did it for the reason the hon. Gentleman mentions: I believed it would create stability in Europe. The problem is that it has done exactly the opposite. Look, throughout the countries of the European Union, at the grassroots movements and the rise of the far right, which I deeply abhor and have opposed ever since I set about the Maastricht rebellion in 1990. I set out then why I was so opposed to the Maastricht treaty: it was creating European Government and making this country ever more subservient to the rulemaking of the European Union. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), that has been conducted behind closed doors. We have been shackled by European laws. He asked at one point if we could give one example. The ports regulation is a very good example. We fought that in the European Scrutiny Committee and in the House of Commons, but we were not allowed to make any difference to it. It was opposed by the Government, it was opposed by the Opposition, it was opposed by all the port employers and it was opposed by the trade unions. What could we do about it? Absolutely nothing!
John Redwood
Does my hon. Friend agree that once Parliament has passed the repeal of the 1972 Act, Ministers will only be able to do things that this Parliament permits them to do? Today, Ministers have to do many things that the European Union insists on, which this Parliament cannot discuss or overturn.
Sir William Cash
There are at least 12,000 regulations, every one of which would have required a whole Act of Parliament, with amendments and stages in both Houses. A transcript would have been available. People would have known who voted which way and why, and known the outcome of what was a democratic process. Instead, as I said to my right hon. and learned Friend the Member for Rushcliffe—even he conceded that I was right on this—the process is conducted, over bibulous lunches and in the Council of Ministers, in a manner completely lacking in democratic legitimacy, yet, because of consensus arrangements behind closed doors, it becomes part of our law through section 2 of the 1972 Act. It is imposed on us by our voluntary consent. It is therefore up to us and the people of this country to decide, by their voluntary consent and their freedom of choice, to get out of this, just as it was brought in by an Act of Parliament, without a referendum, in 1972.
Wera Hobhouse
Has the hon. Gentleman not shown a deep misunderstanding of how the European Union works through consensus and participatory democracy? Rather than one country dictating to another, that is the whole spirit of the European Union. No one country is sovereign, but decisions are taken in the round.
Sir William Cash
I am sorry to disillusion the hon. Lady. I have been in this House for 33 years and I have been on the European Scrutiny Committee for 32 of them. I can absolutely assure her that what she says is simply not reflected by the practice of the European Union: the system is essentially undemocratic.
Antoinette Sandbach
Does my hon. Friend not feel that it is ironic that all 12,000 EU regulations will be imported into UK law under a process that will not have the detailed scrutiny of the House, because Henry VIII powers will be used to do it?
Sir William Cash
My hon. Friend might just reflect on the fact that there is no other way of transposing the legislation. I drafted the original repeal Bill, so I understand it very well. I did so before the referendum, in fact, because—I say this to my right hon. and learned Friend the Member for Rushcliffe—I believed we would win. In reality, once we have brought this into UK law, we will be able to have our own Bills—on agriculture, fisheries, customs, immigration, and various other parts of our constitutional arrangements—that can be properly discussed and amended.
Paul Scully (Sutton and Cheam) (Con)
Does my hon. Friend agree that every single one of the regulations coming into UK law is already abided by in this country and in this Parliament and are to its satisfaction at the moment?
Sir William Cash
Yes, the reality is that the Bill, if and when it goes through—and I believe it will—will incorporate into UK law EU legislation already consented to in the way that my hon. Friend mentions. We have agreed to them, but unfortunately they have not had the democratic legitimacy that will be conferred upon them when the Bill goes through.
I proceed now to the important question of the European Court of Justice. I made this point to the Prime Minister about 10 days ago and again to the Brexit Secretary last week. I wish to mention three pieces of case law that we inherited when the treaties that had accumulated after 1956 came upon us through section 2 of the 1972 Act. The first two are Van Gend en Loos in 1963 and Costa v. ENEL in 1964. In its judgment in the first case, the European Court asserted that
“the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”.
In Costa v. ENEL, the Court ruled:
“The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights”.
In 1970, in the Handelsgesellschaft case, the Court said that community law should take precedence even over the constitutional laws of member states, including basic entrenched laws relating to fundamental rights. It does not get more profound than that. Those decisions are mere assertions by the Court, yet under section 3 of the 1972 Act, we agree to abide by them.
Mr Kenneth Clarke
Will my hon. Friend agree that all treaties involve a pooling of sovereignty? We gave up immense sovereignty when we joined the United Nations and NATO, membership of which we would never dream of renouncing. The European Court exists to enforce treaty rights, including obligations on members. Does he recall probably the most important case there of modern times, when the British Government took the European Central Bank there to assert our treaty rights so that the City of London and our financial services industry could have a passport to financial services in the eurozone? It was worth thousands of jobs and showed the benefit of the Court in upholding treaty rights, including the most important treaty rights of the UK.
Sir William Cash
I also remember the case of Factortame, when Lord Bridge made it clear that by Parliament’s voluntary consent, given by virtue of the 1972 Act, an Act of Parliament—namely, the Merchant Shipping Act 1988—could be struck down. I am not trying to be disingenuous. The fact is that the 1972 Act empowers the European Court to strike down UK Acts of Parliament. That is what sovereignty is all about.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
The hon. Gentleman talks about sovereignty and the pooling of sovereignty. Building on the point from the right hon. and learned Member for Rushcliffe (Mr Clarke), how does the hon. Gentleman think we will achieve new trade deals without ceding sovereignty, given that all trade deals—like EU membership, as the right hon. and learned Gentleman just pointed out—require the ceding of sovereignty?
Sir William Cash
I must say to the hon. Gentleman, and to my right hon. and learned Friend the Member for Rushcliffe, that there is a world of difference between that and having agreements by virtue of treaties in international law, which are actually matters on which it is possible to make decisions without being absorbed into and entangled in a legal order. That is the difference. It is the acquis communautaire and its principles that completely undermine the sovereignty of this House. I am prepared to concede that some people—
Sir William Cash
I am sure that my hon. Friend will be making this point, but I will try to anticipate it. There are circumstances in which the pooling of sovereignty by virtue of, for example, NATO is claimed to be a genuine pooling, but it is not, because it is possible to withdraw from it. The whole point about the European Communities Act is that it is not possible to withdraw from it except by repealing it in this manner. That is what we are doing now.
Robert Neill
My hon. Friend has strongly emphasised the importance of the sovereignty of the House, and I agree with him. Is it not all the more important that, as we leave, this sovereign House should have a meaningful vote on the terms on which we leave, rather than there being a “take it or leave it” vote at the end of the process? Is that not the ultimate expression of sovereignty, and will my hon. Friend therefore support it?
Sir William Cash
The answer is that I am supporting the outcome of the referendum, which, by virtue of our sovereign Acts of Parliament, we decided that we would pass over—
Mr Howarth
On a point of order, Dame Rosie. Delightful though it is to sit listening to the hon. Gentleman expatiate on all manner of things, I am struggling to discover what this can possibly have to do with new clause 49—or, for that matter, any of the amendments and new clauses linked to it.
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I thank the right hon. Gentleman for his point of order. We are also debating clause 1, which is fairly wide-ranging, so the hon. Member for Stone (Sir William Cash) is in order.
Sir William Cash
I had actually spotted that, Dame Rosie, and I am most grateful to you for confirming that I am in order.
Let me now touch on some of the issues that arise from this continuous emphasis on the virtues of the European Court of Justice. There is the constitutional principle, which I have already explained, and there is the case law, which I have also already explained. But it goes further than that. The very great Lord Justice Bingham, in chapter 12 of his book “The Rule of Law”, describes the relationship between the courts and Parliament. He comes down unequivocally in favour of Parliament. He makes it clear that when Parliament passes a Bill such as the one that we are to enact, it will override all the laws in the European system that have shackled us so far, and also all the Court judgments, save only that we have agreed, by virtue of the retained law, to transpose some aspects of the process to which we have become used, and which we can decide what to do with at a future date.
Sir William Cash
I certainly will; I should be only too delighted. I have been waiting to hear from my right hon. and learned Friend, whom I happen to know very well, and for whom I have great respect. I shall listen to him with interest.
Mr Grieve
I do not think my hon. Friend can have it both ways. A moment ago, he was talking about direct effect. There is no doubt that if we leave the European Union, direct effect will cease on the day we go; but, as I am sure he knows, we are signed up to about 800 treaties with arbitral mechanisms that can lead to judgments affecting the United Kingdom, which we then undertake to implement, sometimes by changing our own laws. I do not quite understand why my hon. Friend has such an obsession with the Court of Justice of the European Union if its direct effect will be removed, although we will have to be subject to it during the transitional period as we are leaving.
Sir William Cash
I do not think that matter has been entirely settled, by any means. The hon. and learned Member for Edinburgh South West (Joanna Cherry) earlier referred to a lunch she was at, where it appears that she was told we were going to be subject to the European Court of Justice, and my right hon. and learned Friend has made exactly the same point.
I have to say that there are serious questions about the nature of the European Court. The problem is that the European Court is essentially not an impartial court at all. It has never discharged the function impartially, and from the early 1960s it developed a range of principles, such as those of the uniform application and effectiveness of EU law, that it then expanded of its own volition into the general principles of the supremacy and direct effect of EU law over national law. These judge-made principles had no basis in the EU treaties until the Lisbon treaty, which my right hon. and learned Friend, who was then Attorney General, opposed. The fact is that until Lisbon—
Sir William Cash
I am afraid not, as I really must proceed.
None of these judge-made principles had any basis in the EU treaties, and the principle of the primacy of EU law is a judicial creation recently codified, and no more than that. However, because we have accepted judgments of the European Court under section 3 of the European Communities Act 1972, which we are going to repeal, we are saddled with this, and that is one of the things we are going to unshackle.
Interpretation is done in the European Court by what is known as the purposive approach. In fact, as has been well said, there are many different purposes that can be in conflict with one another, and the methods of interpretation applied are anything but satisfactory. I therefore say to those who want to advocate the European Court, whether in the transitional period or in general, “Beware of what you wish for,” because the European Court can create havoc in relation to our trading arrangements.
Angus Brendan MacNeil
If the hon. Gentleman is so opposed to the European Court of Justice, what is his dispute resolution mechanism going to be? Independent states need a dispute resolution mechanism where they cede sovereignty; they give some of their sovereignty and get some of somebody else’s sovereignty. What is that going to be?
The Second Deputy Chairman
Order. I been generous in allowing the hon. Gentleman to range over a number of subjects, but I gently remind him that there are a lot of speakers in this debate, so I am sure his list about the European Court of Justice is now a little shorter than it was before.
Sir William Cash
I shall conclude my remarks on this point. The European Court is seriously deficient in a whole range of matters. On the question put by the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil), the idea has been put forward by Martin Howe QC, and I have put it forward myself in the House, of a system of jurisdiction that would be more in the nature of an arbitration, where there might be, for example, retired European Court judges or whoever, who would adjudicate—but on a bilateral basis, not on the basis of a decision taken by the European Court. It is possible to come up with a solution, therefore, but I do recognise the problem.
We are now embarked upon a massive restoration of self-government in this country. This Bill is essential to achieve that, and should be passed without any of the obstacles and frustrating tactics being put in its way.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I rise to speak to amendment 386, which has cross-party support and which I tabled late last night. The Minister said that it was somehow introducing “chaos” into this process. With the greatest respect, after a fortnight in which we have seen the Foreign Secretary, the International Development Secretary, the former Defence Secretary, the current Defence Secretary and the Cabinet Secretary all subsumed in controversies, I think the Government are doing quite well on the chaos front without any help from me. Also, the idea that taking the exit date out and putting it into a different Bill would create chaos when, just five days ago, Ministers did not want it in any Bill at all, makes the Government’s argument look rather silly.
The amendment would require Parliament to vote on the terms of withdrawal through primary legislation before Brexit day. That would mean that exit day would be set in UK law not in this Bill but in a future Bill, either in the withdrawal agreement and implementation Bill that the Government announced yesterday or, if there is no deal at all, through an alternative Bill setting out the terms of departure and presumably whatever implementation plan would be needed in those circumstances.
The purpose of the amendment is not to dispute the Government’s intentions about the timing of exit day; it is simply to ensure that there is a proper parliamentary and democratic process before we get to that date. The central focus is not the date itself but a requirement on the Government to do as they have promised and set out a meaningful vote for Parliament in advance of that date. The amendment would also ensure that Parliament could properly respond, whatever the outcome of the Government’s negotiations, rather than being inadvertently timed out if things were to go badly wrong.
Yesterday, we learned from the Government that there would be a second Bill to implement the withdrawal agreement, and that is welcome. That was the subject of other amendments that the right hon. and learned Member for Beaconsfield (Mr Grieve) and I had tabled because we were concerned that Parliament should not give the Executive a blank cheque through this Bill on the implementation of a withdrawal Bill that had not yet happened. Rather less welcome was the Government’s admission that the legislation might not actually happen before Brexit day. Even less welcome was the Brexit Secretary’s admission that the vote on the withdrawal agreement would simply be a take-it-or-leave-it vote, and that therefore if the Government negotiate a bad deal, if they have no implementation plan in place or if other things go wrong along the way, Parliament would simply have to accept that or choose to have no deal at all.
Under the Government’s proposals, Brexit day would be embedded in primary legislation through this Bill, and it would therefore become legally and constitutionally possible for Ministers simply to let us drift towards exit day without Parliament being able to insist on any kind of implementation preparations or any kind of plan at all. Such a concentration of power in the hands of the Executive would be unacceptable. No legislature should ever accept that: certainly not this legislature right now when we were given a hung Parliament by the electorate less than six months ago; and certainly not our Parliament, whose sovereignty has been such a key issue throughout the debates on the referendum.
The amendment would strengthen the democratic process around Brexit and ensure that Parliament could vote on the terms of withdrawal, whether there was a deal or not, before exit day. It would implement the Government’s commitment to a meaningful parliamentary vote. If everything goes according to the Government’s plans and promises, if they get the timetable they want for the transition agreements being agreed in the early part of next year and the withdrawal plans agreed by the autumn, and if we get the kind of deal that the Government have promised, with all the benefits that it will bring, all that the amendment would do would hold the Government to that by implementing their intentions and their timetable. It would hold the Government to what the Brexit Secretary said yesterday was his primary plan for the timetable. It would hold Ministers to that plan on the face of the Bill. It would also prevent the Government from delaying the withdrawal agreement legislation beyond the withdrawal date. It links the timing of exit to the terms of exit in the parliamentary process. It would prevent Parliament from being timed out because it would give Parliament the final say. If the Government’s plans go wrong—I hope they will not—it also gives Parliament a say in how the country should respond. For example, if we end up with no deal at all, if we run out of time—I hope that will not happen—or if the whole thing goes belly up, it gives Parliament a role. It allows for a debate on whether the Government should go back to the negotiating table or just walk away. It allows for a debate about the timing of Brexit day. It allows Parliament to debate and decide, rather than just throwing up our hands and leaving it to Ministers—rather than just drifting along.
Stephen Doughty
My right hon. Friend is making an important point. This morning, she and I both heard the Mayor of London clearly set out the implications of not having a security treaty for the safety of London, let alone the rest of the country, so I wholeheartedly agree with her points.
Yvette Cooper
My hon. Friend is right. That was the evidence we heard. Parliament has a responsibility to have a contingency plan. Whatever it is that we hope might happen over the course of the next 12 months, we have a duty to ensure that we have plans in place for every eventuality and that Parliament itself can take some responsibility.
Right now, with the Government’s amendments made and without my amendment, it would theoretically be possible for us to just drift towards exit day without any substantive opportunity for Parliament to step in perhaps to amend the withdrawal terms in the Bill or maybe to require the Government to change their plan or to go back and negotiate some more. That would be up to us in Parliament to decide, but we will not get the chance to decide under the Government’s current plans.
Robert Neill
Has the right hon. Lady noted the sensible comments of the chairman of the Policy and Resources Committee of the City of London corporation? While an orderly Brexit might not be the desired outcome for the right hon. Lady and I, an orderly Brexit with a proper transition and with this House having a proper say is manageable for our financial services sector. However, a disorderly Brexit that was the result of our inability to extend negotiations for a short period if need be, for example, would be a disaster for this country and is regarded by some firms as being on the same level as the threat to cyber-security. On that basis, is it not foolish for the Government or the right hon. Member for Birkenhead (Frank Field) to try to put a leaving date on the face of the Bill?
Yvette Cooper
I share the hon. Gentleman’s concerns. As Select Committee Chairs, he and I have both heard evidence about security and wider issues, and I also share with him my personal views about the importance of having a transition period and a smooth process. To be honest, whatever people’s views on whether there should be a transition and on how we should respond to different negotiating outcomes, it should still be for Parliament to debate and to decide before exit day, not after. That is what Parliament should be for. Frankly, the Government would be irresponsible not to give Parliament the opportunity to debate and take a view on the terms and on the timing once they have been agreed.
There is a con in what the Minister said earlier, because the Government actually do recognise that there may be circumstances in which exit day has to be changed. The Minister said that clause 17 will not apply and that somehow it will not allow the Government to change the exit day through regulations after it has been agreed in the Bill, but that is not the advice I have had—it is not the advice the House of Commons Library gave me this afternoon, for example. In fact, the combination of clause 9 and amendment 383 will still allow Ministers to change exit day, if they so choose and if they think it appropriate. That is the impact of the Henry VIII powers throughout the Bill.
We understand why Ministers might want a provision to be able to come back and say that exit day needs to change because we have reached the 11th hour, because the negotiations need to be extended by an extra month or because the process needs to be changed. Ministers have kept that power in the Bill for themselves, but why should the power be reserved just for Ministers? Why cannot Parliament have that power, too? That is the flaw at the heart of the Bill. If in unforeseen or difficult circumstances Ministers need to change the timetable, they can, but Parliament will have no choice, no say and no ability to do so.
Antoinette Sandbach
Does the right hon. Lady agree that, if Parliament did have that opportunity, it would be taking back control and sovereignty would be returned not to the Executive but to this House?
Yvette Cooper
The hon. Lady is right. We had all those debates about taking back control and parliamentary sovereignty, yet somehow the Minister seems to want to rip it all up. The Government are trying to concentrate huge amounts of power in the hands of Ministers, rather than giving the whole of Parliament a say.
Ministers have to stop infantilising Parliament and treating Parliament as if it is the enemy. The truth is that the sky did not fall in because Parliament had a vote on article 50. The Government told us that it would, and they told us that the whole process would be stopped, but it was not stopped because each and every one of us understands that we have obligations and responsibilities towards the referendum result, just as we have obligations and responsibilities towards the negotiation process that the Government have to conduct on our behalf, and that we cannot directly conduct for them. We know that we have those different responsibilities, and we know that we have to take mature and responsible decisions given the complexity of the situation that faces every single one of us. We just do not think that those decisions should be entirely in the hands of Ministers; we think that the whole of Parliament should have a say on something so important.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
My right hon. Friend is making an incredibly powerful speech and argument. Does she agree that having the vote and support of Parliament behind the Government and the action they take would strengthen the Government’s hand in the negotiations with the European Union?
Yvette Cooper
I agree with my hon. Friend, because this should be about the whole of Parliament, just as when we had the responsible debate on article 50. We know it is complex. It is our job and our responsibility in a democracy to deal with that complexity, and not just to abdicate our responsibility and hand it over to Ministers because, somehow, it is too difficult for us in Parliament to deal with. Of course it is not too difficult, and of course we are capable of dealing with the complex situation we face.
Anna Soubry
Does the right hon. Lady agree that we simply have not had the debates? That, of course, is not lost on the European Union, and it is also not lost on the people of this country. If we had those debates and if we had a real say on what Brexit will look like, we would begin to form a consensus and we would begin to bring people together across the United Kingdom in getting that good deal, reuniting so many divided communities, families and even friends.
Yvette Cooper
I agree with the right hon. Lady. The truth is that the plans for our Brexit future have to be sustainable and have to command consent. The plans will have implications for many decades to come. They have to give us the chance to heal the Brexit divide across the country from the referendum, and they have to give Parliament the chance to debate the details and to have a proper, honest debate about what it will mean across the country.
Catherine West
Does my right hon. Friend agree that had things gone differently in last week’s debate and had the information been laid before the House, emotions might not be running so high?
Yvette Cooper
Clearly, we need more transparency.
I want to draw my remarks to a close. My amendment gives Parliament the opportunity to indeed take back control. The hon. Member for Stone (Sir William Cash) said he wants us to debate in this House how we are governed. Well, then he should vote for my amendment, rather than concentrate power in the hands of Ministers. At a time when we have seen democratic values and democratic institutions undermined and under threat right across the world, we have an even greater responsibility to ensure that there is a proper democratic process and that we follow our obligations that come with the parliamentary Oath we took. So much of the debate we had during the referendum was about parliamentary sovereignty. What my amendment does is make that real.
Mr Grieve
It is a great pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in this debate, particularly as the matters on which I wish to touch very much concern her amendment and some of the others we have had.
I hope that the House will forgive me if I start by dealing briefly with the opening remarks of the right hon. Member for Birkenhead (Frank Field). I am sorry he is not in his place, but I hope that he will forgive me if I say that the words he articulated were ones that I could fully understand and appreciate—heaven knows I have heard them often enough from constituents and from right-thinking people who want the best for our country—but that contained simplicities. Those simplicities simply do not match the problems this House faces in disentangling us from our relationship with the European Union. This issue has bedevilled the entire debate on Brexit and remain, and it is one reason why we find ourselves where we are today.
I happen to believe that what we did last year was a great and historic error. I cannot help it, and nothing that has happened since is going to alter my view. I recognise my responsibility as a Member of Parliament to try to give effect to what the public asked for in their response to that referendum. But in doing so, I am certainly not willing to suspend my own judgment, particularly when I have to witness what I see as an extraordinarily painful process of national self-mutilation, which I am required to facilitate. I cannot escape that; that is what I feel, and I am not going to abandon it because I am ordered to do so by anybody else.
With that in mind, I have to say what the right hon. Gentleman is asking for is the desire perhaps of many people in this country, which is to go to bed at night and wake up to find that the whole thing is over and done with. Unfortunately, it is not going to be over and done with for a very long time. The problem we have in this Bill, and on which we have to focus, is how we try to take this risky, dangerous—for our economy, our national security and our national wellbeing—and difficult process to a reasonable outcome. That is the challenge we have got. In doing that, Parliament cannot simply abdicate its responsibility to the Executive. Of course the Executive have to get on with the business of the complex negotiations, but Parliament is entitled to take a check on this at every conceivable stage.
I have to say to my colleagues on the Treasury Bench that the problem is that as the difficulties have piled up—in my view, they were inevitable, predictable and predicted—the tendency has been for everybody to get more and more brittle, more and more unwilling to listen, and more and more persuaded that every suggestion that is being made is in some way a form of treason. I have to say, with the deepest regret, that this culminated last Friday with a mad amendment, which I shall come back to in a moment. It was tabled, I believe, without any collective decision making in government at all and it was accompanied by bloodcurdling threats that anybody who might stand in its way was in some way betraying the country’s destiny and mission. I am afraid that I am just not prepared to go along with that.
Paul Farrelly
I welcome the amendment tabled by the right hon. and learned Gentleman that would remove the Alice “Through the Looking-Glass” absurdity of there being different exit days for different purposes. I was an early signatory to all his amendments because they are eminently sensible. The right hon. and learned Member for Rushcliffe (Mr Clarke) described entertainingly the reasons for the remarkable metamorphosis of the Bill, from one that allowed Ministers to name an exit day or different days by regulations into one that names a day and a specific time. It was a sop to the denizens of what he called the fourth row below the Gangway. Has the right hon. and learned Member for Beaconsfield reflected on what such a fundamental change signals to our partners in the European Union about how serious we are and how carefully we have thought through this crucial process?
Mr Grieve
There is no doubt that some of the problems we have are not going to be helpful in our negotiation. Equally, it is right to say that the more we can have mature, considered and sensible debate in this House, the more we improve our ability to negotiate with our EU partners.
I have tabled a number of amendments. As with all amendments, some are multiple choice—we have to do this in this House, because it is how we go about looking at and examining legislation—and some are probing amendments. Some are, in my view, more important than others. I tabled the one that hon. Gentleman highlights because the Government did not really explain that they wanted multiple exit dates. I wanted to tease out why and to suggest that one exit date might be better because of the consequences for the use of Henry VIII powers thereafter, but there might actually be a justification for what the Government are doing. All that needs to be worked through in the legislation, and that is what I have sought to do.
I say to my right hon. and hon. Friends on the Treasury Bench that over past weeks we have had some really sensible, constructive discussions on some of the areas covered by the amendments that I have tabled. I hope very much indeed that we can achieve some degree of consensus, in which case some of the amendments, whether on triage or the way we treat retained EU law, might not be required. I do not wish to get diverted into all that; I shall come back to it in later debates. The trouble is—I repeat this—that it all gets marred by events such as those last Friday, when extraordinary amendments are suddenly magicked out of the blue that simply do not make any sense at all.
When I read the amendments and those consequential on them, which I must say I saw only this morning, I saw another problem: as has already been highlighted, one of the consequentials seemed to me to totally undermine the purpose of the main amendment, to the point where the conspiracy theorist in me made me think it was a sort of double deceit or double bluff—that it was intended in some way to give the impression to some of my right hon. and hon. Friends who really worry about this that they were being offered this tablet of stone on our departure, but it was in fact teasingly capable of being shifted. My hon. and learned Friend the Solicitor General sent me a text earlier that said that I was mistaken and that that was not the intention—that it was the very reverse.
I am not a parliamentary draftsman, and I know that there are always different ways in which an amendment to a statute can be read. I remain of the view, though, that the wording is very peculiar indeed if the intention is to exclude the possibility of playing around with the exit date, which is being offered as a talisman. I must say to my hon. and learned Friend the Solicitor General that I did naughtily begin to wonder whether in fact the parliamentary draftsman was so appalled at the folly of what the Government were doing that he had sneakily altered amendment 383 to try to offer them a lifeline in case they came to regret what they had done. I am sure that that is being very unfair to the parliamentary draftsman, whom I know always does what is requested of him or her.
Chris Bryant
The tendency of any Government, especially when they have such a major project on their hands, is always to try to manage the project and to manage Parliament. Has the right hon. and learned Gentleman discovered over recent weeks that the sad truth of the matter is that there is a consensus in the House that embraces all those on the Opposition Benches and a significant number of Government Back Benchers? It actually embraces half the Government—I can see at least three, possibly four, Ministers sitting on the Front Bench who would sign up to his amendment. Would not it be far more rational for the Government simply to calm down about this process and try to establish a consensus that can carry the country forward?
Mr Grieve
I endorse what the hon. Gentleman says. That is precisely what I wanted to start suggesting to Ministers. There are a number of key areas in this debate this afternoon. The first is the recognition, belated but nevertheless I am grateful for it, that leaving the EU requires statutory authority from this House to make it part of the rule of the law of our land. It is a very important principle. Indeed, I detect that the Government also recognise that if, at some point in the future, we get beyond transition we will probably need another statute to alter the law of our land for any final agreement that we have with our EU partners. We will have to take it in a measured way, and the Government will have to accept that Parliament, being sovereign, must, at the end of the day, have the ability to support or reject this. There is no way around that.
Of course there are the hypothetical questions, such as “Well, there might be nothing to reject because we might be falling out of the European Union with no agreement.” Indeed, yes, but we will discover that when the time comes. In the meantime, the Government must get on with their negotiation, and we can carry on scrutinising them on that. At the end, we want a statute. That statute—I think that this has been acknowledged by the Secretary of State—has got to come before we leave.
That then brings us to a critical issue in this debate. The best point made by my right hon. Friend the Secretary of State yesterday was that, whereas moving into transition is a qualified majority decision, getting an extension to article 50 requires unanimity. Therefore, the Government may be living with legitimate anxiety that there could be circumstances in which, running up to the wire, there could be difficulty implementing the whole thing by statute. I personally think that that seems inherently improbable, because, on the face of it, if our partners agree a deal with us, why would they then decide to pull the rug from under our feet in such an extraordinary fashion—I know that they talk about “perfidious Albion”, and we probably think that they are all garlic eaters—to tell us that we cannot have an extension to article 50 for the necessary two or three months to take through our statutory processes while they have to take their processes through the EU Parliament?
Angus Brendan MacNeil
Was the right hon. and learned Gentleman alarmed, as I was yesterday, when, after mentioning to the Secretary of State that the Prime Minister had asked in September for a two-year extension—six months after she had triggered article 50 —he did not seem to have a clue when the EU 27 might possibly agree to it? Some of the media think that that extension will automatically happen, but, as we speak, there is absolutely no guarantee that we will get it. Is he alarmed that the UK might indeed find itself out because of its own actions in March?
Mr Grieve
There are massive uncertainties in all this, and I do not want to pile the gloom on the Treasury Bench. All I will say is that there are great risks. I do understand that the Government have an important point on this, but if that is the case, the proper dialogue that should be taking place between those on the Treasury Bench and the House is how we craft and alter this legislation both to emphasise the statutory process to be followed and to make sure that the only circumstances in which it is not followed—clause 9 has to be used as an example—is where it would be impossible to get an article 50 extension to enable the statutory process to take place before we go. If we do that, we will start talking sense in this House, rather than the polemical nonsense that we have been talking over the past few days.
John Redwood
When Czechoslovakia decided to form two countries with two Governments—a very complicated task—it took six months planning and was implemented over a weekend. Why does my right hon. and learned Friend think that the 16 months remaining is not enough time in which to reach an agreement or to reach the sad conclusion that an agreement is not possible in the mutual interests of both sides, and to do all that in an orderly way? Surely 16 months is more than enough time to sort this out.
Mr Grieve
I cannot help it that the reality is that we entered into a partnership that now includes 27 other member states. We cannot just magic that away; they all have their interests, and they will all have to be taken into consideration at the end. As we have seen with trade agreements that are reached with the EU and other states, they take time. Indeed, my right hon. Friend and some of my other hon. Friends are, frankly, delusional in their belief of the speed with which these wonderful new trade agreements with third countries will be concluded once we leave the EU. My main anxiety on that topic is that there are 759 external treaties that come through our membership of the EU and that we are in danger of losing with amendment 381, tabled by the Government, in respect of putting a writ-in-stone date on when we have to leave. That should worry us just as much as any other aspect of leaving the EU.
Peter Kyle (Hove) (Lab)
Is not the real ludicrousness of amendment 381 that it is unenforceable and there is no punishment if that law is broken? As a former Attorney General, will the right hon. and learned Gentleman tell us the point of having a law for which—if the date is extended and the law broken—there is absolutely no consequence? The Minister will not be sent to prison for breaking it. It is a worthless political gesture.
Mr Grieve
I hope that the hon. Gentleman will forgive me, but I do not entirely agree with him. If the measure stays on the statute book, the consequence would be that at 11 pm on 29 March 2019—even if the agreements, transitional arrangements and everything else have not been worked out—we will drop out of the EU, potentially into the void that so much of this legislation is apparently designed to prevent. All the possible benefits of continuing in transition would not be available, so this actually matters very much indeed. That brings me—although I do not want to take up the Committee’s time—to the infamous amendment 381.
Amendment 381 was sprung on the House, sprung on the Conservative party and certainly sprung on me—after weeks of talking gently to my ministerial colleagues and trying to find a sensible way through, which I continue to want to do—and suddenly landed on us as a diktat. It is quite simply unacceptable because it fetters the Government’s ability to carry out this negotiation, which makes me seriously question their competence, and it disenfranchises the House from properly exercising its scrutiny role, with the potential that, in fact, is almost an invitation to running into the buffers. Although I do not happen to believe that this is what the Government want to do, it certainly appears to play into the hands of those who seem to be so eager that we should leave the EU with absolutely no agreement whatever.
I seriously worry that I go to audiences of the kind that seem to extol the virtues of some of my colleagues on this side of the House, and I am told that only a departure from the EU without any agreement at all can detoxify us of the taint of our participation. Those were the very words used to me at the Conservative party conference. All I can say is that the individuals who are saying these things are utterly misguided, do not understand how a parliamentary democracy works and do not understand how an international community operates. But, whatever their grievances may be, they are the people to whom we have to sensibly articulate an alternative approach.
I am really pleased that amendment 381 cannot be put to the vote this afternoon, because I have to say to my right hon. and hon. Friends that I will vote against it. There are absolutely no ifs, no buts and no maybes about this—no arm-twisting and nothing that can be done to me in the intervening period. It is unacceptable and I will not vote for it. I will not vote for it if I am the only person to go through the Lobby to vote against it. The sensible thing for Ministers to do is to go away, have several cups of tea, think again, continue talking to me about all the other sensible things we have been talking about and on which we are likely to reach agreement, and just focus for a moment on where there is unanimity in this House about how we should proceed.
Several hon. Members rose—
The Temporary Chair (Sir David Amess)
Order. I remind the House of what Dame Rosie said earlier: there is a long list of colleagues still waiting to speak, so unless we have brief contributions, many colleagues will be disappointed, because the first votes come at 6.51 pm.
Hywel Williams (Arfon) (PC)
I rise to speak to Plaid Cymru’s amendment 79, standing in my name and those of hon. Friends from several parties. This amendment to clause 1 would require the UK Government to gain the consent of the devolved Parliaments and Assemblies before they repealed the European Communities Act 1972. It would require proper consideration, consistent with the constitutional settlement within these islands, for the Prime Minister to have all four parts of the UK in agreement before the European Union (Withdrawal) Bill could come into force.
While in each of the devolution statutes the UK Parliament retains the power to legislate in relation to devolved matters, the Sewel convention requires that it should not normally do so without the consent of the relevant devolved legislature. The Supreme Court, in the Miller case on triggering article 50, found that the Sewel convention is no more than that—just a political convention without legal standing. However, to proceed without the available agreement of at least two parts of the UK—Scotland and Wales—and with the agreement of the other parts ascertained only in ways that are obscure to me, and even in ways that are not normal, as the Government appear to intend, would be foolhardy and, indeed, outrageous.
As far as I can see—I hope the Minister can correct me—the Government have launched into this process without properly considering how the views of the four parts of the UK could be ascertained; without proper consideration of the views of the Scottish and Welsh Governments; with the means of ascertaining the views of Northern Ireland unavailable; and with the elephant in the room, of course, being the need to explain precisely who speaks for England—something that is always unconsidered or unspoken in this place.
What we do know, however, following the publication of the EU withdrawal Bill, is that the Scottish SNP and Welsh Labour Governments issued a joint statement calling it “a naked power-grab”. They have since made it clear that the Bill as it stands would be rejected by the respective devolved Governments. Given the continued lack of an elected Assembly in Northern Ireland, given that the Government here in Westminster are being compelled unwillingly to take powers to themselves, and given that the dispute between the parties in Northern Ireland appears to be no closer to resolution, it is also unclear how opinion in Northern Ireland is to be gauged.
Paul Masterton (East Renfrewshire) (Con)
The hon. Gentleman’s amendment refers specifically to a resolution of the Northern Ireland Assembly. There is not a Northern Ireland Assembly in place to grant such a resolution. While we hope there will be one soon, we surely have to countenance the possibility that we could get through to March 2019 still without one, so how would his amendment enable the European Communities Act to be repealed if there is no Northern Ireland Assembly to pass a resolution?
Hywel Williams
As I said, it is unclear to me what the situation is in Northern Ireland. I have heard the rumours, one way or another, that they are extremely close to a resolution other than on the Irish language—[Interruption.] It is being motioned behind me that perhaps that is not the case. However, anything could happen.
The principle of our amendments is that the democratically elected Assemblies in Wales and Northern Ireland and the Parliament in Scotland should have their say.
Lady Hermon
It is a constitutional convention of the utmost importance that legislative consent is given by all the devolved institutions, particularly on such a major constitutional change. The fact is that we have no Northern Ireland Assembly and no expectation of having one in the near future. However, even if I were to be surprised by the fact that the main parties—the DUP and Sinn Féin—could agree in an Assembly, the figures are such that the majority of the 90 MLAs are anti-Brexit and will not give legislative consent to this Bill. The Government’s Bill is going nowhere without the legislative consent of Northern Ireland, and that will not be forthcoming.
Hywel Williams
I thank the hon. Lady for making that point. I am loth to stray into Northern Ireland politics for extremely clear reasons.
Hywel Williams
I take that advice. I say only that it has been suggested that some in Northern Ireland would surely see the Government’s taking this decision with no Assembly in place as being the diktat of a governor general, or at the very least unwise as a basis on which to proceed.
As I said, the elephant in the room is the question of who speaks for England. This is the last constitutional conundrum—the constitutional exceptionalism that successive Governments have failed to address in this place. Who speaks for England? Clearly on this matter, it appears that this Conservative Government do so. Are the Labour Opposition sanguine about that? I hope to press this amendment to a vote. I do not know how Labour will vote on it, but I remind them that their Labour colleagues in Cardiff are certainly not sanguine.
The Minister may point to the resurrected Joint Ministerial Committee as a cover for—
Ben Lake (Ceredigion) (PC)
Members will no doubt be aware that the Joint Ministerial Committee on EU Negotiations has met only twice in the past year. Does my hon. Friend agree that that Committee fails to afford the devolved Administrations a real voice in these negotiations and that in its current form it is wholly inadequate for the purpose of facilitating discussion and agreement?
Hywel Williams
I thank my hon. Friend for making that point. I was obviously about to come on to that matter.
The Government might wish to use the Joint Ministerial Committee as a cover for proceeding with this matter, but so far that Committee has not proved itself to be a substitute for proper agreement obtained directly with the Welsh Assembly and the Scottish Parliament. The JMC—as obscure to many Members in this place as it is to the press and the population at large—met in February and did not meet again until October, during which period the most important and momentous events were taking place and fundamental decisions being taken. Following the October meeting, the Government sought to gloss over the real concerns of the Scottish and Welsh Governments, but as I said earlier, these have now been made clear.
In the Brexit Committee on 25 October, I asked the Brexit Secretary what the formal relationship was between himself and the First Secretary of State, who is handling the JMC. I asked:
“What is the formal relationship between your Department and his on this specific issue?”
He replied,
“there is none at all. He is one of my oldest friends”,
to which I replied:
“He is a very fine man, I am sure.”
I have been in this place for long enough—though not in government—to know the ways of Whitehall working. There are two conditions: where there is a formal relationship between Departments and there is accountability, and where there is no formal relationship and there is no accountability. In the case of the JMC, there is no formal reporting back but perhaps a chat between old friends. I have a large number of old friends—fine people whom I respect—but I certainly would not base my decision about the future of my children and my grandchildren on an informal fireside chat.
Stephen Doughty
Does the hon. Gentleman agree that the crucial issue is not the one he deals with in amendment 79, but whether the Government respond to the cross-party amendments about the Scotland and Wales Acts and other important matters, in line with what the Scottish and Welsh Governments have said? Responding to those amendments in a positive way would show true respect for the constitutional settlement, which the Government have yet to show.
Hywel Williams
I am arguing in favour of my own amendment, but I accept the force of the hon. Gentleman’s words. As he knows, we have supported several Labour amendments.
Plaid Cymru has warned of the problems for quite some time. We wrote to the Welsh Secretary over the summer outlining our opposition to the withdrawal Bill and asking for answers about what would happen if the Welsh Assembly withheld consent. The response that we received in September was an aspiration, and it was wholly inadequate. It merely replayed the mantra: “We want all parts of the UK to back the Bill.” It was no response at all.
We raised the matter during a general debate on Brexit and foreign affairs on 26 June, during Brexit ministerial drop-in sessions on 19 July, during the debate on the Queen’s Speech on 26 July, in Welsh questions on 6 September, on Second Reading of this Bill on 11 September and during oral evidence sessions in the Brexit Committee on 17 October. Not once has a Minister told us how the Government plan to proceed if the devolved legislatures do not support the Bill. The only conclusion that we can draw, therefore, is that the Government will press ahead regardless. It is, after all, their legal right to do so, for the time being.
Angus Brendan MacNeil
It would be absolutely fascinating if the Government pressed ahead regardless, against the backdrop of three out of the four Assemblies or Parliaments of the United Kingdom opposing such pressing ahead. That would really show that we were not in a union but in an absolute superstate, which is what many Members say they are trying to get away from.
Hywel Williams
Amendment 79 might elucidate that point, which the hon. Gentleman put well. The final step of trying to prise an answer out of the UK Government about how they will react if the devolved Parliaments reject this Bill is to gauge their reaction to the amendment, which calls for the Sewel convention to be legally binding in relation to the Bill. That is why, with permission, I will press the amendment to a vote. It already has the support of the SNP, the Liberal Democrats, the Green party and, I understand, at least one Labour MP. In my view, it would be unthinkable for Labour, which is the largest party in Wales, to oppose Wales having a say, contrary to the stance of their colleagues in Cardiff.
If the UK Government are deadly serious about having all four nations on board, and if they are determined to respect the Respect agenda, they will accept the amendment. If not, we must assume that the Prime Minister intends to ignore the clearly expressed will of the National Assembly for Wales and the Scottish Parliament, breaking her promise of working closely with the devolved Administrations to deliver an approach that works for the whole UK. I urge everyone in this House to support amendment 79.
John Redwood
Clause 1 of this historic Bill is the most important constitutional matter to come before the House of Commons since the 1972 Act. I have read some of the debates that Parliament conducted at the time, and we could indeed say that the repeal is more significant than the House believed the original Act to be. When the original Act was passed, the Government reassured the House that it was no surrender of sovereignty to a supranational body and no major transfer of power. They told the House that it was, instead, a major development of a common market; that the areas in which the European Economic Community would have competence would be very narrow and limited; and that the UK would preserve a veto so that if the EEC proposed anything the UK did not like, the UK would be able to exercise its veto and show that Parliament was still sovereign.
That was a long time ago. Over the years, what appeared to be a modest measure to form a common market has transformed itself into a mighty set of treaties and become, through endless amendment and new treaty provision, a very large and complex legal machine that is the true sovereign of our country. It has exercised its sovereignty through the European Court of Justice, the one supreme body in our country during all the time we have remained in the EEC and, now, the EU. We have seen how that body can now strike down Acts of Parliament, prevent Ministers from taking the action they wish to take and prevent this Parliament from expressing a view and turning it into action.
John Redwood
No, I am not going to take any interventions. I am conscious that we have very little time, and I want other colleagues to be able to speak in this debate.
We have been unable all the time we have been in the EU to have our own migration policy or to decide who we wish to welcome into our country. We cannot have our own fishing policy and we cannot have our own farming policy. We have moved into massive deficits on both fishing and on farming, whereas we used to have a good trading surplus on fish before we joined the European Economic Community and we used to produce most of the temperate food we needed before the common agricultural policy started to bite.
The British people decided in their wisdom that we should take back control, and we will take back control by the passage of this very important piece of legislation. Above all, clause 1 will take back that control. The great news for colleagues on both sides of the House who had different views on whether we should leave or remain is that their genuine passion for democracy, which many on both sides of the argument have expressed today, can be satisfied by agreeing to clause 1, which repeals the original Act. Once that has happened and the repeal has taken place, this Parliament will once again listen to the wishes of the British people and be able to change VAT, our fishing policy, our agricultural policy, our borders policy and our welfare policies in the ways we wish.
Neil Gray (Airdrie and Shotts) (SNP)
Will the right hon. Gentleman give way?
John Redwood
No. I have already explained that I am conscious that many colleagues wish to join in the debate.
I just hope that right hon. and hon. Members on the Opposition Benches will recognise that, far from this being a denial of democracy as some fear—they seem to think it is some kind of ministerial power grab—this legislation will be the complete opposite. Once it has gone through, no Minister of the Crown, however grand, will be able to use the excuse that they had to do something to satisfy the European Court of Justice or the European Union. They will have to answer to this House of Commons, and if they cannot command a majority for what they wish to do, it will be changed. That is the system that I and many Opposition Members believe in, and that is the system we are seeking to reintroduce into our country, after many years’ absence, by the passage of this legislation.
There are concerns about whether the date of exit should be included in the Bill. I think it is good parliamentary practice to put something of such importance on the face of the Bill, and to allow us extensive debate—as we are having today, and doubtless will have more of before the completion of the passage of the legislation through both Houses—so that the public can see that we have considered it fully and come to a view.
I listened carefully to the right hon. Member for Birkenhead (Frank Field) and I have a lot of sympathy with what he was trying to do, but I will take the advice of Ministers and support their particular version of the amendment. I will do so for the reasons that were set out very well by the Minister: we need complete certainty, and that requires a precise time of transfer. People need to know which law they are obeying and to which court they are ultimately answerable, minute by minute, as they approach the transfer of power on the day in question, and that is a very important part of the process.
I hope those who have genuine fears that we will not have enough time to negotiate are wrong. I think 16 months is a very long time to allow us to see whether we can reach a really good agreement. Of course, we all hope that we can reach a good agreement. Some of us know that if there is no agreement, it will be fine. We can trade under World Trade Organisation terms and put in place, over the next 16 months, all the things we need to do, on a contingency basis, to make sure that if we just leave without an agreement, things will work.
I appeal to all Members to understand that, although most of them may not want that contingency, it is a possible outcome. We cannot make the EU offer a sensible agreement that is in our mutual interests, so surely this House has a duty to the public to plan intelligently and to scrutinise Ministers as they go about putting in place the necessary devices to ensure that it all works.
The Chair of the Home Affairs Committee should relax. She is talented and quite capable of leading her Committee, and I am sure that it can make a valuable contribution. Nobody is stopping her or her Committee scrutinising, asking questions, producing ideas or helping the Government make sure that there is a smooth transition. She and I both believe in parliamentary democracy. She has an important position in this House and I wish her every success in pursuing it, in the national interest, so that Ministers can be held to account.
The task before us should be one that brings Parliament together. We should not still be disputing whether or not we are leaving. We let the British people decide that and then this House voted overwhelmingly to send in our notice. I explained at the time that that would be the decision point—most Members took it relatively willingly, others very willingly—and we now need to make sure that it works in the best interests of the British people.
I urge the House to come together to work on all those details, to make sure that we can have a successful Brexit, even if a really good agreement is not on offer after a suitable time for negotiation; and I urge the European Union to understand that it is greatly in its interests to discuss as soon as possible a future relationship. If it does not do so soon, we will simply have to plan for no agreement, because it is our duty to make sure that everything works very smoothly at the end of March 2019.
Mr Howarth
It is, I think, a pleasure to follow the right hon. Member for Wokingham (John Redwood), who invited the House to come together and sort these problems out. The problem with his invitation, however, was exposed by the rest of his speech, in which he argued that if we do come together, it has to be on his terms. There is no scope for those of us who believe that there is a different way of doing this; we can only do it in the way in which he and those who have agreed with him over many years think it can be done. That is an invitation that I am more than prepared to resist.
I rise to speak in favour of the helpful amendment tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and that tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), to which I am also a signatory.
Before I move on to those amendments, I would like to say a word about the speech by my right hon. Friend the Member for Birkenhead (Frank Field). He is a good friend of mine: I have known him for many years and have always respected him. He compared this process to that of buying a house. That is a seductive way of looking at it, but he neglected to mention that the process of buying a house includes something called sold subject to contract. Article 50 might represent “sold subject to contract”, but we have yet to see what the contract is. My right hon. Friend’s analogy is perhaps more apposite than he realised, because perhaps we are in such a process but at a completely different stage from that which he suggested.
I will return directly to the argument by the right hon. Member for Wokingham about why the House should come together. Many of us believe that while that might be possible at some point, we are not at that point yet. I have two yardsticks to apply before I decide—if I am given the opportunity, provided by the two amendments I referred to—whether it is the right thing to do.
Everybody has rightly said that the people voted to leave. That is true. They did so by a smallish margin, but they did. In my constituency, they voted in exactly the same way as the national result. There is an obligation on us to recognise, acknowledge and deal with the implications of the referendum vote. What the people did not vote for, however, was an agreement the dimensions of which we do not even understand. That is where we are at the moment.
The first yardstick I will use to judge the question is the points my constituents raised with me on the doorstep. First, they said they would vote to leave because they did not like the amount of immigration. I argued with them, but that was the point they put to me. Secondly, they argued for parliamentary sovereignty. I tried to explore that more fully, but it did not often end up in a productive conversation. Thirdly, they argued for greater economic freedom. Other arguments were made and will no doubt be debated, but they were the three main issues raised with me on the doorstep.
I come back directly to the question put by the right hon. Member for Wokingham. What are we as a House supposed to unite on? At this stage, I do not know whether any of the reasons for my constituents to vote the way they did will be addressed—they certainly will not be addressed by the Bill—by the Government’s final deal. I do not know, the Government do not know, my constituents do not know and the House does not know, yet we are somehow being asked to take it on trust that at some point all will be revealed and there will be nothing to worry about. Forgive me, but I have been in this House for a number of years, in opposition and in government, and I know there is always something to worry about, particularly when the Government do not even know what the end of the process is likely to bring.
Sir Desmond Swayne (New Forest West) (Con)
Will the right hon. Gentleman give way?
Sir Desmond Swayne
Is the right hon. Gentleman’s implication that unless he is satisfied with an agreement he will not allow us to leave the European Union?
Mr Howarth
I will answer precisely that point before I conclude, but if the right hon. Gentleman will forgive me I will do so in my own particular way.
The second test to apply is fairly straightforward: are we heading into economic disaster? At this stage, we are unable to say. We do not know what the trade terms will be and we do not know how they will affect businesses and workforces. All of that is to be negotiated. If, at the end of the process, all those questions have been answered to my satisfaction and that of my constituents, I could vote, provided I am given the opportunity, to leave the European Union. At this stage, however, there is such a lack of clarity about where we stand and where we will get to that I am not prepared to give that commitment. I cannot say to my constituents that everything they voted for will not happen, on top of which it will be economically disastrous for us.
I say to the Government: get on with the negotiations, but we want the opportunity to say this is not right for our constituents. I will vote for the amendments tabled by the right hon. and learned Member for Beaconsfield and my right hon. Friend the Member for Normanton, Pontefract and Castleford to make sure that we have exactly that opportunity.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
I have often taken part in such debates as these and felt rather in the minority in opposing a new European treaty, and I wonder whether I am still in a minority in the House today, as it probably has more remainers than leavers in it, which rather colours the judgment of those taking part in the debate.
Mr Jenkin
I just put that forward as a problem. I believe as passionately in my case as my right hon. Friend does in hers. I sympathise and understand, but we have to accept that the country voted to leave. The one thing we know about how people voted—whether it was for this deal or that deal, whether they believed or disbelieved this or that piece of propaganda—is that they voted to leave the EU. That is the one thing it said on the ballot paper. I cannot understand how anyone can come to the House and say, “Well, there might be circumstances in which I will not respect that decision”, as the right hon. Member for Knowsley (Mr Howarth) just did. That is what it amounts to.
Peter Kyle
Sir Winston Churchill said that the role of an MP was to put country first, constituency second and party third. Does the hon. Gentleman accept that, if the Government come back with a bad deal, allowing it to go forward would put none of those three first?
Mr Jenkin
That brings me to my next point. This debate is rerunning many of the arguments during the referendum campaign. The remain case was premised on the idea that it is a horrible, cruel world out there, that we cannot survive outside the EU, that it will be completely disastrous and that unless the EU give us permission and lots of help and support and agree to a whole lot of stuff we would like, we will be on our own in the cold. You know what? It is not true. Most countries are not in the EU and they are fine. This debate sometimes loses sight of that.
I wish to speak in favour of clause 1 standing part of the Bill. I agree so much with my right hon. Friend the Member for Wokingham (John Redwood). This is the most important Bill since we joined—more important, in fact, because after 45 years of membership it is so much more significant than it was. The principle of democracy is that Parliament legislates and Ministers obey and implement the law. The problem with the EU is that it turned our Ministers into legislators. They go to Brussels, sit in council, legislate and then bring back fait accompli legislation that is then imposed on this House. The 1972 Act is the greatest Henry VIII clause that has ever existed, and there is something a bit inconsistent —I understand why they are saying it—in complaining about Parliament not being treated properly, given that the whole principle of our membership of the EU requires the removal of the House’s right to make the laws of this country.
Chris Bryant
I note that the hon. Gentleman just said that it was wholly inappropriate for Ministers to go to Brussels and bring back a fait accompli. In relation to the EU negotiations, would it not be wholly inappropriate, therefore, for Ministers to go to Brussels, bring back a fait accompli and not give Parliament a proper opportunity to say, “You know what? You’ve got this wrong. You’ve got to renegotiate.”?
Mr Jenkin
I completely agree with the hon. Gentleman. The House should have the right to accept or reject the deal, and it will—it will have the right to reject or accept the withdrawal agreement and implementation Bill; but that will not change the decision to leave the EU. That decision has been taken.
I turn to the date of our exit. The referendum said leave. We were all told that we had to use article 50. Article 50 says on the tin that it takes two years maximum. The date is already fixed. There is no choice about the date. The date has to be in the Bill, otherwise we will weaken our negotiating position.
Several hon. Members rose—
Mr Jenkin
I will make my point and then give way.
The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.” That will not put us in a very strong negotiating position.
Mr Grieve
I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?
Mr Jenkin
My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. [Interruption.] It was my right hon. and learned Friend who used the word “hypothesis”.
The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.
Anna Soubry
I am very interested in my hon. Friend’s point about the fact that the date should have been in the Bill. It was an important point, so will he tell us why he did not table an amendment to insert the date?
Mr Jenkin
Would I be telling tales out of school if I said that I had thought about it, and discussed it? In fact, there was plenty of friendly discussion about it, but in the end the Government decided the matter for themselves, and I support the Government. I think that, given that we are in a slight minority in this Parliament and we have to deliver a very difficult Brexit and take part in difficult negotiations, it is incumbent on all Conservative Members to support the Government whenever we can.
Vicky Ford (Chelmsford) (Con)
I completely agree with a vast amount of what my hon. Friend has said. Article 50 sets the date, but it also sets the process, and the last part of the process is a vote in the European Parliament. As I recall from my time in the European Parliament, it often asks for a little bit extra at the last minute. My concern about hard-wiring the date is that it makes it more difficult for our Government and the other 27 national Governments to give that little bit of extra time should it be needed. It loses our flexibility rather than giving us more. That is my only concern.
Mr Jenkin
Unfortunately, even the European Parliament cannot change the exit date. It would have to be agreed by all the other member states. To predicate our negotiating position on our ability to persuade the 27 member states—and the Commission and the negotiating team in Brussels—to extend the date would be completely wrong.
Any Members who intend to vote against this date must be really confident that they can change a date that has already been set by the European Union treaties. The whole point about the deal/no deal scenario is that—as I have already said to the right hon. Member for Knowsley—either we accept the deal, and the House votes on it, or there is no deal. That is the choice that is available to the House. The House cannot veto Brexit—[Interruption.] I wish to conclude my speech.
Any Members who voted for the European Union (Notification of Withdrawal) Bill are obliged to support the amendment, because that is the date for which they implicitly voted when they voted for the Bill, and for a two-year period. Any Members who voted for article 50 but now do not wish to fix the date are open to the charge that they do not actually want us to leave the European Union—[Interruption.] Let me say this to my right hon. and learned Friend the Member for Beaconsfield. He has suggested that if we do not have a deal we will be jumping into “a void”, and that fixing the date will constrain our negotiations and disenfranchise Parliament. I respect the sincerity of my right hon. and learned Friend’s passion, but he calls the cut-off date barmy when he voted for that date by voting for the article 50 Bill. This amendment rumbles those who have not really accepted that we are leaving the EU.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
My hon. Friend knows that I share his fundamental beliefs about the need for us to leave the European Union, but is there not merit in the suggestion of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that we need not have a fixed date? After all, our own negotiators might wish to have an extension; this is curtailing the flexibility and room for manoeuvre of our own negotiators. My right hon. and learned Friend has proposed an ingenious and commendable solution: that we write into the Bill the date, but we create exceptions for circumstances in which the negotiators might need it. I urge my hon. Friend, and all my hon. Friends who share my view on the EU, to reflect carefully on the suggestion made by my right hon. and learned Friend; it is a commendable one and it requires careful reflection.
Mr Jenkin
I am still seized of the truth that if we beg the EU to extend the time because it has run us up against the timetable—after all, it is the EU that is refusing to negotiate on the substantive issues at the moment, not us—that is the position and responsibility it must face. We should be clear and strong that if the EU does not reach an agreement with us by a certain date, we are leaving without a deal. That would put us in a stronger negotiating position than ever.
Tom Brake
I am very pleased to start by saying that, irrespective of what might or might not be in this Bill, I would, of course, not want us to leave the EU. I must say that there have been some rational speeches from the Conservative Benches, in particular those of the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve). I also saw a significant and rational nodding of heads on the Government Benches during their speeches; I hope that as this debate develops many more of those rational Conservatives will be willing to speak out. I think that, like me, they believed before the EU referendum that leaving the EU would cause us significant damage and that they continue to do so to this day. As they have seen the Brexit negotiations proceeding, I suspect their view has been reinforced. I hope we will hear many more outspoken speeches from Conservatives.
The debate has inevitably been peppered from the Government Benches—the fourth row, referred to frequently—with the usual clichés from the usual suspects about the impact of the European Union: comments about EU bureaucrats plundering our fish and the secrecy that applies. The hon. Member for Stone (Sir William Cash) is no longer in his place; I do not know whether he has ever participated in a Cabinet committee meeting, but if he is worried about secrecy, he could, perhaps, do so—he will then see how clear that decision-making process is.
There have also been many references to the importance of the sovereignty of this Parliament, which is of course important, and unfavourable comparisons have been drawn with the EU, along with a complete disregard of how that body conducts itself through the Council of Ministers and the role of Members of the European Parliament. The only thing that has been missing from the debate has been a reference to the EU stopping children from blowing up balloons. No doubt if the Foreign Secretary had been here, he would have been able to add to that list of clichés about the impact of the EU, and it is a shame that he is not here to reheat that particular canard.
I make no apologies for seeking to amend the Bill and supporting a large number of amendments tabled by Members on both sides of the House, although I do not have much confidence that the Bill can be knocked into shape.
Tom Brake
I will give way later, perhaps to people who have not had an opportunity to intervene. I want to make a bit more progress.
I do not know whether the new clause tabled by the right hon. Member for Birkenhead (Frank Field) was politically inspired, but it is clear that the amendment tabled by the Secretary of State, which we have heard a lot about over the past 72 hours, was very much a political initiative.
Frank Field
As I think the right hon. Gentleman should, given what he was imputing. The new clause was politically inspired, of course, because I wanted to see a date in the Bill. If he is suggesting that someone else was directing the kind of new clause I should table, he might want to have a word with the Opposition Whips to find out how easy a job that is. [Laughter.]
Tom Brake
I thank the right hon. Gentleman for that intervention, but I am perplexed: I was not suggesting that anyone had been pulling his strings. I was simply wondering whether it was his own political inspiration that had led him to table the new clause. However, both the new clause and the Government amendment are damaging and irresponsible. They are also pointless, in that the Government could, of their own volition, choose to change the end date. I have to wonder whether they would not in fact seek to do that if they were close to a deal just days or hours away from the deadline.
Wendy Morton (Aldridge-Brownhills) (Con)
Does the right hon. Gentleman not accept that we are coming out of the EU and that this is not a game of hokey-cokey, with one foot in and one foot out?
Tom Brake
We do not often play games of hokey-cokey in this Chamber, and I certainly would not want us to do so today.
We are debating what is without a doubt the most serious issue that the United Kingdom has faced in the past 50 years, but I am afraid that the Government are not conducting themselves terribly efficiently. The Prime Minister’s amendment secured one or two newspaper headlines, but I was pleased that it did not succeed in stemming the Tory resistance. I would like to encourage the use of the word “resistance”. I do not know whether many Members have read Matthew Parris’s article, in which he suggests that we should use the term “resistance” in relation to ourselves when some Conservative Members prefer to describe us as remoaners—or, indeed, traitors.
Mr Evans
I would not call the right hon. Gentleman a remoaner, but he is a Liberal Democrat; I am just wondering which bit of the democrat in him does not accept the result of the referendum, that 52% of the country voted to leave and that the Prime Minister made it absolutely clear that we would leave if that is what the people voted for. Let me remind him that 41% of his constituents voted for him, whereas 52% voted to leave the European Union. When is he going to ask for a rerun in his own seat?
Tom Brake
I am sure that what I am about to say to the hon. Gentleman will reassure him that I am a democrat. He will be aware of the Liberal Democrats’ view that the only way that the vote on 23 June last year can be undone is by means of a referendum of everyone in the country, some of whom might have changed their minds. Perhaps he would like to explain why the people have the right to express their will on this particular issue only once and never again. We, as democrats, are arguing that there should be another opportunity—
Wera Hobhouse
Does my right hon. Friend agree that there seems to be a fundamental lack of understanding about democracy? Democracy is not fixed in stone; a decision that has been made once does not have to last for ever and a day. Indeed, our parliamentary democracy is based on people being able to vote every four or five years and perhaps vote for something else. The referendum should not be seen as forever fixed in stone.
Tom Brake
Indeed, although the hon. Member for Stone thinks that our democracy is very much set in stone on this issue. Interestingly, when the hon. Member for Harwich and North Essex (Mr Jenkin) was asked what would happen if, 12 months from now, 90% of the population felt that a mistake had been made on 23 June 2016, he seemed to say that we would proceed regardless and completely overlook any change in public opinion.
The Liberal Democrats will clearly oppose new clause 49, but one thing I learned during the debate is that the right hon. Member for Birkenhead is apparently not an ardent Brexiteer. I was surprised to learn that, but I welcome the fact that things are evenly balanced for him. However, I was a bit worried to hear him say that we did not need more facts; it is actually quite important to have facts and not necessarily always to act on one’s gut feelings.
Mr Jenkin
The right hon. Gentleman completely misrepresents what I said, which was a hypothetical. Does he really believe that the British people are going to change their minds? It may be a pious hope but, if anything, leave would win by a far bigger majority if there was another referendum.
Tom Brake
The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there.
I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily.
As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal.
If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be.
I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far.
If we have a vote on clause 1 stand part, I will certainly be ensuring—
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
Will the right hon. Gentleman give way?
Mr Leslie
Like the right hon. Gentleman, I am sceptical about clause 1 standing part of the Bill, because it asks Parliament to agree to sweep away the whole body of the 1972 Act without knowing what on earth will replace it. It asks us to embark on that journey without knowing the destination. Conditions should be placed on the repeal of the 1972 Act. For example, we should have a treaty with the European Union before the repeal is allowed to take place.
Tom Brake
I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly.
In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.
Mr Djanogly
My concern is related to the timing issues of the phase 1 exit period and, by implication, of the transition period and, by extension, to how those periods link in to the proposed timing of the phase 2 deal on the future relationship with the EU following Brexit. That is the subject of a number of interconnected amendments.
The key point on timing is that, rightly or wrongly—probably wrongly—we have dropped our initial insistence that the terms of withdrawal, or what is known as phase 1, should be negotiated at the same time as the terms of our future relationship, which is known as phase 2. As things stand, the EU is saying that we should sort out phase 1—Northern Ireland, citizens’ rights and the amount of money—before we start scoping discussions on phase 2. The Government have said that the scoping of phase 2 should start in December, but the EU has threatened delay if we do not move forward significantly on phase 1 within the next couple of weeks.
Clearly, from the EU Commission’s perspective, and I believe from the perspective of British and continental business, the timelines are moving from tight to critical in terms of the need for a transitional agreement and a phase 2 outline. I separate the two because, of course, the transitional period is legally derived from and relates to the phase 1 exit date set out in article 50, providing time, for instance, to change over regulators and to allow companies’ systems to be changed over, too. Incidentally, it will also be used as a standstill period during which the Government can conduct their negotiations on phase 2.
Having heard the debate so far today, both in Committee and elsewhere, I am still unsure as to why we should fix an exit date that will thereby fix the date of the transition agreement. I can see only downside, with the Government losing control of one of the levers they could use to control the negotiations. Briefings I have just received also indicate that removing the flexibility of having different exit dates for different issues could undermine the ability of the banking and insurance sectors to amend their systems in time, risking financial instability.
The proposal to fix a date also possibly pushes us into a corner and unnecessarily increases the EU team’s leverage. Indeed, as has been said, when the Ministers came to the Brexit Committee, the flexibility to set multiple exit dates was described to us as a tool for setting different commencement dates for different provisions and for providing for possible transitional arrangements. What has changed in the Government’s approach over the past few weeks? That is something Ministers have to address.
It is now seemingly the Government’s intention to follow the Bill with further primary legislation to provide for an implementation period and the terms of the withdrawal agreement, along the lines of amendment 7 tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which he says he will now update. The amendment has received a lot of cross-party support, and we will debate it at a later date. The Government initiative is welcome, but it will not in itself protect us from the dead-end option of fixing the exit date, which seems to pander to those who would welcome a no-deal Brexit.
My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) tabled new clause 54, which provides for securing a transition period of at least two years. Although the amendment will be substantially debated later, I think it is conservatively worded. When the Brexit Committee went to Brussels recently, Monsieur Barnier talked of the adequacy of two years for negotiations, as has our Secretary of State for Exiting the European Union. However, nearly everyone else, including the European Parliament representative and the representatives of MEDEF—the French CBI—thought that three years, and possibly up to five years, will be needed.
Two years from the exit date may be enough time to settle the provisions of phase 1, but most experts are saying that two years is widely over-optimistic for negotiating an FTA. We need to consider what will happen if the Government do not reach certain targets by certain dates. For the Brexiteers, it may simply be that we go into hard Brexit mode. I personally think that would be extremely damaging to British business, but it is of course the default position under article 50. For those of us who want to have a negotiated phase 2 settlement, more Government attention is needed in this area.
The hon. Member for Feltham and Heston (Seema Malhotra) tabled new clause 69, a thoughtful amendment that asks what should happen if the Government do not secure a withdrawal agreement by 31 October 2018 or if Parliament does not approve the withdrawal agreement by 28 February 2019. Rather than jump off the proverbial no deal, hard Brexit cliff, there is a suggestion of ending the two-year period or agreeing a new transitional period. For that approach to work, we would have to ensure that we do not have a fixed exit date. It would, in effect, involve taking up the offer previously made by the hon. Member for Sheffield Central (Paul Blomfield) and the Government starting to talk to the Opposition. Given where we are, that is going to have to happen one way or another, and we should face up to it now.
The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker)
It has been a pleasure to listen to this wide-ranging debate, but I do not intend to summarise it, and nor do I have the time to do so. I did, however, want to do something that the voice of my fellow Under-Secretary, my hon. Friend the Member for Wycombe (Mr Baker), would not allow him to do, which is to respond to the amendment standing in the name of the hon. Member for Arfon (Hywel Williams), who is not his place, and which has been supported by a number of Opposition Members.
My hon. Friend rightly spoke about how the Bill was about continuity, certainty and control, and that matters to every part of the UK. The hon. Member for Arfon and those who signed his amendment know that we are committed to securing a deal that works for the entire UK—for Wales, Scotland, Northern Ireland and all parts of England. There is considerable common ground between the UK Government and the devolved Administrations on what we want to get out of this process, and we expect the outcome to be a significant increase in the decision-making power of each devolved Administration. But we are clear that no part of the UK has a veto over leaving the EU; we voted in a referendum as one United Kingdom and we will leave as one United Kingdom. This Government have already shown their commitment to the Sewel convention—
Lady Hermon
What the Minister has said is very important, and I am listening carefully. Has he sent a signal this evening that he is prepared, and the Government are prepared, to ignore the requirement of the legislative consent of the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly in order to get their way with this Bill? Is that the signal he has sent?
Mr Walker
The hon. Lady pre-empts my next point. What I would say before making the point about Wales and Scotland is that of course we all want to see a Northern Ireland Assembly in place and functioning, with power sharing, so that it can give assent to this Bill. The Government have already shown their commitment to the Sewel convention, demonstrated through its inclusion in the Scotland Act 2016 and the Wales Act 2017, and we are seeking legislative consent for this Bill in the usual way.
Mr Walker
I am afraid I cannot give way again at this point. We want to make the positive case for legislative consent and work closely with the devolved Administrations and legislatures to achieve this.
Crucial to understanding this Bill is the ongoing work on common frameworks, which has been mentioned, determining areas where they will and will not be required, which will reduce the scope and effect of clause 11. We acknowledge that that work on common frameworks will be crucial to the consideration of legislative consent.
Angus Brendan MacNeil
So the position of the UK Government is that if three of the four legislatures of the UK oppose this, he will ride roughshod over them. This is not a Union; it is a superstate. We are not in a Union; we are in superstate. The only superstate in Europe is the United Kingdom.
Mr Walker
The hon. Gentleman does not serve the interests of his own argument. We acknowledge, as I was just about to say, the position that the Welsh Government and the Scottish Government have taken to date on legislative consent to this Bill, but there has not yet been a vote in the Scottish Parliament or the Welsh Assembly on this and we remain confident that we will reach a position that can attract support. I want to stress that this Bill takes no decision making away from devolved Administrations or legislatures. We will, of course, return to these issues in more detail on days four and five in Committee.
In the meantime, we are pressing on with our engagement with the Scottish and Welsh Governments. The Secretary of State for Exiting the European Union has been in contact with the Scottish and Welsh Governments on several occasions, and the First Secretary of State has met the Deputy First Minister of Scotland and the First Minister of Wales to progress discussions between Joint Ministerial Committee meetings. In addition, at the recent JMC (EN) on 16 October, the principles that underpin where frameworks will be needed and where they will not be needed were agreed with the Welsh and Scottish Governments. We are now moving into the next phase of this work, with detailed analysis of the policy areas with those Governments. This is a clear sign of progress, but I reiterate the point I made to the hon. Member for North Down (Lady Hermon): we would like to see a Northern Ireland Executive in place, with power sharing back in place, so that they can engage further on the official engagement that has taken place. In tandem, officials met officials met yesterday for technical discussions on the amendments proposed by the Scottish and Welsh Governments. In the past week, I have spoken to no fewer than four committees of devolved legislatures with colleagues from across Government, so I welcome their detailed scrutiny.
We will continue this engagement, and we hope to make the case for the Bill in every part of the United Kingdom, but amendment 79 would provide scope for individual vetoes on our exit from the European Union. We have already held a referendum that gave us a clear answer on the question of leaving the EU, which was subsequently endorsed by Parliament through the passage of the European Union (Notification of Withdrawal) Act 2017. The amendment goes against the grain of both our constitutional settlement and the referendum result, so I urge the hon. Gentleman to withdraw it.
Hywel Williams
Would the Minister concede that one man’s veto is another man’s respectful disagreement?
The Temporary Chair (Sir David Amess)
Order. The Minister has resumed his seat.
Frank Field
In this debate, many Members expressed worries about democracy. Although the hon. Member for North East Fife (Stephen Gethins) is totally opposed to the position I set out, his was a stunning speech. If people with such abilities can be returned to this House, I do not think we have to worry too much on that front.
The right hon. and learned Member for Beaconsfield (Mr Grieve) accused me of simplicity. I hold his abilities in higher esteem than he holds them himself. Sometimes, though, choices are clear. There is a clear choice about how we negotiate with the group we are facing in Europe. Amendments are necessary, but because the Government, without the fingerprints of anybody else, have tabled an amendment stronger than my new clause, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Four hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Order, 11 September).
The Chair put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).
Clause 1
Repeal of the European Communities Act 1972
Amendment proposed: 79, page 1, line 3, at end insert—
‘(2) Regulations under section 19(2) bringing into force subsection (1) may not be made until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly signifying consent to the commencement of subsection (1).”—(Hywel Williams.)
This amendment would make the repeal of the European Communities Act 1972 on exit day conditional on the Prime Minister gaining consent from the devolved legislatures.
Question put, That the amendment be made.
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
Amendment 357, in clause 6, page 3, line 29, at end insert—
“(A1) Retained EU law is to be interpreted in accordance with subsections (A3) to (A7), unless otherwise provided for by regulations under this Act.
(A2) Subsections (A3) to (A7) do not affect the application of section 7 to retained EU law where, but for the operation of those subsections, the retained EU law would fall within that section.
(A3) Retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom.
(A4) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom.
(A5) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State.
(A6) Any provision which requires or would, apart from subsection (A5), require a UK body to—
(a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or
(b) take account of an EU interest,
is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate.
(A7) In subsection (A6)—
‘a UK body’ means the United Kingdom or a public authority in the United Kingdom;
‘an EU body’ means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State;
‘an EU interest’ means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU);
‘requires’ includes reference to a pre-condition to the exercise of any power, right or function.”
This amendment provides a scheme for interpretation of EU law and to provide a backstop where necessary transposition has not been effected by regulations made under Clause 7.
Amendment 279, page 3, line 32, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 303, page 3, line 32, after “Court” insert—
“except in relation to anything that happened before that day”.
This amendment would bind UK courts to European Court principles laid down or decisions made after exit day if they related to an act before exit day.
Amendment 202, page 3, line 33, after “matter” insert—
“(other than a pending matter)”.
Amendment 280, page 3, line 33, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 304, page 3, line 33, at end insert—
“except in relation to anything that happened before that day.”
This amendment would enable UK courts to refer matters to the European Court on or after exit day if those matters related to an act before exit day.
Amendment 137, page 3, line 34, leave out subsection (2) and insert—
“(2) When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”
Amendment 281, page 3, line 34, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
Amendment 306, page 3, line 35, leave out from “but” to end of line 36 and insert “a court or tribunal has a duty to take account of anything done by the European Court in relation to—
(a) employment entitlement, rights and protections;
(b) equality entitlements, rights and protections;
(c) health and safety entitlement, rights and protections.”
This amendment would help to ensure that Britain continues to have harmonious social standards with the EU.
Amendment 358, page 3, line 36, at end insert—
“( ) In addressing any question as to the meaning or effect of retained EU law, a court or tribunal must have regard to—
(a) any material produced in the preparation of that law, or
(b) any action taken or material produced in relation to that law before exit day by an EU entity or the EU, to the same extent as it would have had regard to such material or action immediately before exit day.”
The amendment would make clear that non-binding aids to the interpretation of EU law, such as background materials and official guidance produced before exit day, should continue to be taken into account by the courts when interpreting retained EU law to the same extent as at present.
Amendment 278, page 4, line 19, at end insert—
“(6A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of subsections (1) and (2) must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 203, page 4, line 20, leave out subsection (7).
Amendment 282, page 4, line 26, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 283, page 4, line 33, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 284, page 4, line 44, after “exit day” insert—
“as appointed in accordance with subsection (6A)”.
This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Clause 6 stand part.
Amendment 384, in clause 14, page 10, line 36, at end insert—
“‘pending matter’ means any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.
This amendment provides a definition of pending cases for the purposes of Clause 6.
Amendment 353, page 10, line 48, at end insert—
“‘retained case law’ means—
(a) retained domestic case law, and
(b) retained EU case law;”.
Amendment 354, page 11, line 2, at end insert—
“‘retained domestic case law’ means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before exit day and so far as they—
(a) relate to anything to which section 2, 3 or 4 applies, and
(b) are not excluded by section 5 or Schedule 1,
(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);
‘retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they—
(a) relate to anything to which section 2, 3 or 4 applies, and
(b) are not excluded by section 5 or Schedule 1,
(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);
‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);
‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they—
(a) relate to anything to which section 2, 3 or 4 applies, and
(b) are not excluded by section 5 or Schedule 1,
(as those principles are modified by or under this Act or by other domestic law from time to time).”
Mr Leslie
If we do not have a transitional period after exit day and find ourselves moving to substantially different arrangements and a new set of alliances with member states of the European Union, we may have great turmoil in our economy, with a significant number of jobs moving to other jurisdictions. Most people in this debate—apart from the fabled hardliners on the fourth row back below the Gangway on the Conservative Benches—now accept that a transition is needed. The Prime Minister made that point in her Florence speech. However, if hon. Members look very closely at the Bill, they will see that there really is not much in it about the transitional arrangements. Exactly how it will take place has very much been left up in the air.
New clause 14 seeks clarification from the Government about how a transition will be put in place and operate. It simply calls for a report to be made by Ministers one month after the Bill has received Royal Assent to clarify a number of things. Principally, the report would clarify the question how retained EU law will be interpreted during the transitional period, and by extension, how the relationship with the European Court of Justice and many other aspects will operate during that period.
Caroline Lucas (Brighton, Pavilion) (Green)
I very much support the new clause, but does the hon. Gentleman share my incredulity at the fact that the Government have not simply said, “Yes, of course we need to inform businesses and regulators about how retained EU law will be reinterpreted during the transition”? It is very odd that they have not recognised that this very basic and self-evident thing needs to be done.
Mr Leslie
I suspect that that is because the Government are struggling to get such a transition. They have admitted that one is necessary, which is a good step. In her Florence speech, the Prime Minister made that concession. In fact, it is probably the biggest single negotiating input that we have seen from the Government since the triggering of article 50.
I have been talking to businesses and I know many hon. Members have done so, and we are hearing that if they do not have some clarity by January or February, they will have no choice but to put in place contingency plans for a no deal and the fabled cliff edge that we would reach at the end of March 2019. This goes beyond the financial services issues, because it applies to a number of sectors of the economy. We need to make sure that we have some certainty. That is why so much is on the shoulders of the Prime Minister in the December European Council meeting, when we are told that we might get some movement from the European Union on this issue.
Stephen Doughty
My hon. Friend is making an excellent point about the transition. A whole series of amendments have been tabled on this issue, and I wholeheartedly support his new clause. Are the businesses he has spoken to not already having to make very difficult and costly hedging decisions because of the uncertainty caused by the Government and, indeed, the siren call from the small number who want us to go off the cliff into a catastrophic, no deal Brexit?
Mr Leslie
There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition.
The Prime Minister pointed out after her Florence speech that the European Court of Justice will
“still govern the rules we are part of”
during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place.
It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement.
What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.
Sir Oliver Letwin (West Dorset) (Con)
The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?
Mr Leslie
My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.
I invite hon. Members to turn to page 3 and read clause 5(1), which states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”
Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.
Mr Grieve
My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights—does it not?—the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.
Mr Leslie
The right hon. and learned Gentleman is entirely correct. The whole purpose of Committee scrutiny is to try to get some sense out of what is a very complicated set of arrangements. In some ways, the Bill was drafted in an era pre-dating the Florence speech, when we were moving from state A to state B—in other words, from pre-exit day to post-exit day. Of course, the Prime Minister has now accepted that there will be a transition, so a new interim period has been floated, but no legal architecture has been proposed for it at this stage.
The Secretary of State for Exiting the European Union yesterday floated the idea of an Act of Parliament that would also include details about implementation at some indeterminate point, potentially after exit day. New clause 14 seeks clarity from Ministers. They must set out in more detail precisely what would happen to the legal framework in that transitional period.
Helen Goodman
Does my hon. Friend share my astonishment at the answer to my question this afternoon about what the legal basis for the transition period would be? Does he agree that the Government have succeeded in minimising their room for negotiation by fixing the exit day and maximising legal uncertainty and that the one thing that business has been calling for is legal certainty before Christmas?
Mr Leslie
As my hon. Friend says, I am starting to wonder whether the Government will reverse ferret a little bit on the fixed date. We will wait and see—I think the vote will come up on day eight. It is obvious that it has not been as thought through as it should have been.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
My hon. Friend is making some excellent points. Various businesses in my constituency and unions have pointed out the need for, and the benefits of, a transitional period. Does he, like me, feel that because of the Government’s actions we are sleepwalking towards a no-deal scenario that would have a catastrophic impact on our economy?
Mr Leslie
I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.
Mr Jenkin
I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.
Mr Leslie
Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.
Mr Kenneth Clarke
Just to reinforce the hon. Gentleman’s question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government’s position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to—it is agreed to by both Front-Bench teams, in theory—would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?
Mr Leslie
The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem.
The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Is it not clear, from what has been said in Europe and by business, that they want the transition deal to be the same as what we have now, with all the same obligations, so that they do not have to go through two sets of changes?
Mr Leslie
That is absolutely the preference of most sensible observers. We need a transition, of course, because the trade deal arrangements cannot possibly be made adequately by the time of exit day, unless the Secretary of State for International Trade pulls a rabbit out of the hat—perhaps he has been known to do that in the past, but I doubt it will happen this time. The transition period is therefore vital if the UK is to salvage and stitch together a trade arrangement.
We must not forget, moreover, that the 57 existing free trade arrangements with non-EU countries from which the UK benefits by virtue of our EU membership will have to be grandfathered—copied and pasted into UK arrangements. The right hon. and learned Member for Beaconsfield (Mr Grieve) talked about the 759 different international treaties. We do not know quite how those will apply. We have to think about the legal framework not just after but during the transition. We have a massively complex set of legal steps to take, yet we have no clarity from Ministers, apart from this concession yesterday that there might be a Bill at some point, possibly after exit day, perhaps with a vacuum—
Peter Kyle
A transition implies moving from one place to another. If we write into statute the date on which we are to leave, industry and the economy will wake up the next day and find that we are out of the jurisdiction of the European Court of Justice, out of the customs union and out of the single market. That is not a transition but an overnight crash. The Government say that we will then make a further transition and then pick up the pieces, like the Road Runner hitting the ground and having to pick himself up afterwards. This is not an orderly transition; it is, by any definition, a car crash. Does my hon. Friend not agree?
Mr Leslie
Yes. There are massive risks, and if we do not have an orderly transition, there will be big consequences. However, although we have identified 29 March 2019 as a key date, there is another critical date, which will fall in the first quarter of the next calendar year. Many businesses are saying that they must have certainty about what the shape of the transition will be by that time.
The clock is ticking much more swiftly than Ministers may have appreciated. We need to know that they are rolling up their sleeves ahead of the European Council, which begins on 14 December. We may just complete the Committee stage during that week, but it is vital for businesses to have certainty, and it is also vital for Ministers to explain how aspects of the transition will take place. In a way, it would be disloyal to the Prime Minister for them not to do so.
Mike Gapes
My hon. Friend has mentioned the concern felt by businesses. That concern is widespread, ranging from the Confederation of British Industry to the Federation of Small Businesses. It is also felt by the workers and their representatives, including the TUC and many individual trade unions. Why on earth are the Government being so stubborn?
Mr Leslie
We can only speculate. There was even a suggestion at one point that Ministers had not yet broached the topic of transition with their counterparts in the EU and Michel Barnier. Thankfully the Prime Minister raised it in her Florence speech, and I hope that her Ministers are now getting it under way, but we need more certainty and clarity. There is a serious period—two years plus—during which legal arrangements must be put in place. It is not unreasonable for the House to ask Ministers to clarify the position at the earliest opportunity, and certainly by the time the Bill receives Royal Assent.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
I want to talk about amendments 303 and 304, which stand in my name, and to return to a matter that I raised on Second Reading. I hasten to add that the amendments relate to a specific constituency case. However, I do not want to air the details; I want to stick to the principles, because the case in itself raises a problem that I would like the Government to have a look at.
As we know, the Bill transfers all EU law into UK law. That will become effective on the day of exit, ensuring that all the rights enjoyed by British citizens today will be available to them after Brexit. Owing to some practical difficulties, however, some rights cannot be transferred easily because they are entirely reliant on the European Court. The right of the individual to sue a member state for damages when the law has been incorrectly applied and has caused them harm is ultimately reliant on the rulings of the European Court, and on a legal precedent that I think many of the lawyers who surround me in the Chamber know as Francovich.
Although the UK courts will deal with such cases, they must refer questions about the interpretation or application of EU law or EU legal principles to the European Court, particularly when the interpretation is unclear and applies to every member state. Such a reference to the Court will occur, for example, when the interpretation of rules pertaining to the application of VAT across the EU is required. After Brexit the UK courts will determine all law, and there will be no references to the European Court.
I want to give the Government an opportunity to ensure that the principle underlying Francovich—the protection of individuals against malfeasance by the state—will develop within the British legal system. In the meantime, however, there is a transitional issue arising from changes in the law that impacts individuals who have already commenced such legal action prior to Brexit, or who might wish to commence such an action after Brexit in relation to an issue that occurred in the period prior to Brexit.
Mr Grieve
My right hon. Friend raises a very important issue, and it is not just a transitional issue; it is a rule of law issue, and is about legal certainty. My right hon. Friend is absolutely to raise it, and she may agree with me that the Government are going to have to deal with this, because ultimately it is a fundamental principle of law that people should be able to have that certainty when they commence actions.
Mrs Gillan
My right hon. and learned Friend, who is also my constituency neighbour in Buckinghamshire, knows that I have been preoccupied with this for some time. Of course, there is also that principle of UK law called legitimate expectation, which is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power, and I think that that is most important.
Essentially, this principle ensures that the rules cannot be changed halfway through the game if an individual had a reasonable expectation that they would continue. Changes to UK law can only happen prospectively—in other words, they can only apply from a point in the future onwards—and cannot be applied to the past. This means that anyone lodging court proceedings can do so knowing that the rules that applied at the time they lodged those proceedings will apply to their case. If that was not so, the law could be retrospectively changed in favour of the state.
Robert Neill
My right hon. Friend is making a most powerful case, and I absolutely agree with her about the need to deal with the Francovich issues. She serves as a member of the Parliamentary Assembly of the Council of Europe, as I did in the past; does she agree that to leave people without a remedy in these cases, and to breach that important rule of law of legitimate expectation, would hardly be consistent with our people being given their full entitlement under our commitments as part of the Council of Europe?
Mrs Gillan
My hon. Friend served with great distinction on the Council of Europe and I am thrilled to have been put back on the Council of Europe today, along with several colleagues across the House. I happen to think that this is extremely important, as is our membership of the Council of Europe, and my hon. Friend is right that that situation would be looked at with some suspicion by the other 46 members of the Council of Europe. For that reason, it is important that if we change the law through this Bill, changes that result from the Bill only apply from a point in the future, so that individuals can rely on the law as it stood up to the point when the law changed.
Joanna Cherry
I am sympathetic to the arguments the right hon. Lady is putting forward. Following on from the intervention of the hon. Member for Bromley and Chislehurst (Robert Neill), does the right hon. Lady agree that if people’s legitimate expectations and right to an effective remedy are withdrawn as a result of Government action, those individuals might have cause for action against the Government under the European convention on human rights?
Mrs Gillan
The hon. and learned Lady makes a valid point. I am trying to give the Government an opportunity to examine this, as I think it is very serious. I also think that no British Government would want the sort of unfairness thrown up by the anomaly that has arisen from the way the Bill is drafted.
In fact, the repeal Bill already states in paragraph 27(3) of schedule 8 that actions begun prior to Brexit, including Francovich, can continue and can rely on EU legal principles. However, I think there is an error in the Bill, in that it does not allow anyone who has commenced an action prior to the day of exit the right of a reference to the European Court, which they could have reasonably expected when lodging their claim in the court prior to Brexit.
Mr Grieve
That must be wrong as well. In the past, when we have had references to the Privy Council, for example, and a country has terminated those references, the references have continued after the date of termination until all the cases going through the system are completed. It must follow that references to the ECJ—or CJEU, perhaps, to give it its full title—must be able to continue after the date of exit.
Mrs Gillan
My right hon. and learned Friend makes the same point that I am trying to make. Likewise, the Bill does not allow anyone who has suffered harm because of an act of the state in the period prior to the day of exit the right to lodge a claim under the rules as they stood at the time they were harmed.
Antoinette Sandbach
This is incredibly important for my constituents who could face issues relating to HS2, because a right of claim could arise between now and exit day, whenever that is set to be, and it is vital that their rights should not be changed during that period.
Mrs Gillan
My hon. Friend is leading me down a path that I do not wish to go down. I was very much hoping that I could make my contribution today without mentioning HS2, but the trouble is that if I do not mention it, someone else will. In fact, I agree with her entirely. To deny people those rights would be an abuse.
A retrospective removal of rights breaches the principle of legitimate expectation, because individuals have a reasonable expectation that their grievances should be heard under the rules as they stood at the time they were affected. For this reason, I am proposing these minor amendments to the Bill. I do not believe that they would undermine the overall effect of the Bill; rather, they would give legal certainty to those who were caught in the transitionary period. Anyone who has a claim originating in the period prior to Brexit should be able to have their claim heard under the rules as they stood prior to Brexit, including a right to a reference to the European Court. That is only fair and just. The British people voted for Brexit to improve their rights and the rights of their fellow citizens. They did not vote to cause legal confusion or harm, or to frustrate the rights of those relying on the courts during the transitionary phase.
Mrs Gillan
I would like to finish now.
As the Bill already states that cases occurring during the transitionary period can continue, my amendments would do nothing other than ensure that that happens fairly. I really hope that the Government will respond positively to these amendments, and remember that justice delayed is justice denied.
Paul Blomfield
It is a pleasure to follow the right hon. Member for Chesham and Amersham (Mrs Gillan), who has made some thoughtful and sensible points on her amendments, which we would support. I rise to speak to amendment 278, and to the consequential amendments 279 to 284, which would allow for transitional arrangements within the existing structure, rules and regulations. I will also speak to our amendment 306, but I will return to those separate issues later.
Amendment 278 follows on from our earlier debate on clause 1. It brings into even sharper focus the issue of the Court of Justice of the European Union’s jurisdiction during a transitional period. As I said in the previous debate, and as my hon. Friend the Member for Nottingham East (Mr Leslie) said earlier in this one, there can be no transitional period on current terms, as the Prime Minister wishes, without that jurisdiction. The Florence speech has been much quoted already, and I am sure that that will continue. Let me refer briefly to it one more time. The Prime Minister obviously made the speech after the Bill had been published, but perhaps its early drafting did not have the opportunity to accommodate the emphasis that she has placed on the
“two important steps, which have added a new impetus”
to the process.
She said of the second of those steps:
“I proposed a time-limited implementation period based on current terms, which is in the interest of both the UK and the EU.”
She was accepting the case made by business and trade unions for an effective transitional period and, crucially, again making the point that this should be on current terms.
As I said in the earlier debate, we were pleased that the Prime Minister had caught up with Labour on that position. However, seven weeks on from the Florence speech, the Government have failed to reflect the ambition that the Prime Minister had at that time in any of the amendments to the Bill. They came up with the bizarre amendments that we debated in relation to clause 1, but they failed to address that ambition, so we have helpfully stepped in to fill that gap with amendments 278 to 284. The amendments would mean that, in relation to the jurisdiction of the Court of Justice, exit day should come at the end of the transitional period. The reason is simple: without acceptance of the continuing role of the Court of Justice during the transition, the idea that the implementation period, based on current terms, could happen in the way that the Prime Minister described is frankly delusional.
Mr Jenkin
I get the feeling that the cart is coming before the horse here. No transitional implementation has yet been agreed. It has to be part of a deal, and it would be a mistake for the House to start putting things into the Bill in the expectation of certain things that may or may not happen. That is why my right hon. Friend the Secretary of State for Exiting the European Union announced a separate Bill to implement any agreement, which is when such things will be dealt with. This Bill is much simpler than the Opposition would like it to be.
Paul Blomfield
There are some strands of fair comment in that intervention. We have tabled the amendments precisely because, in relation to our previous debate, we do not want the Government closing options down. If the jurisdiction of the Court of Justice is not clear during a transitional period, options would be closed down.
Paul Blomfield
No, I will not. I gave way many times during the previous debate, and I am conscious that many more amendments relate to this clause.
Mr Duncan Smith
Will the hon. Gentleman give way on his point about the Court of Justice?
Paul Blomfield
I have said no. I want to give others the opportunity to speak. I took every single intervention in the previous debate—except perhaps from one of my hon. Friends towards the end of my speech—so I want to make some progress.
The Government have a choice to make today—[Interruption.] I wish hon. Members would stop chuntering. The Government have a choice to make, and they have to make it in relation to our amendment 278.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
You’re scared to have to answer.
Paul Blomfield
Oh for goodness’ sake. The hon. Gentleman can do better than that, even from a sedentary position.
Paul Blomfield
No, having taken every single intervention in the previous debate, most of which came from Government Members, I have explained why, in the interests of other Members, I will not take interventions on this occasion. [Interruption.] The hon. Gentleman can chunter on.
As I was saying, the Government have a choice to make today—a choice about amendment 278. Are they serious about pursuing a transitional period and ensuring that the economy does not fall off a cliff in March 2019 when we leave the EU, or does their ideological red line on the Court of Justice take greater priority than the jobs and livelihoods of people in this country?
Other issues relating to clause 6 also need addressing, and amendment 306 would provide for UK courts to take account of Court of Justice decisions on entitlements, rights and protections on employment, equality and health and safety. The intention of this amendment is to help to ensure that we maintain and keep up with social standards within the EU and do not simply hold workers’ rights and equality in stasis as the EU27 moves forward. Indeed, the EU has made it clear that it will want a level playing field in all those areas if we are to strike an effective trade deal. We are regularly told that the Government do not want to erode rights and protections, but we have a Prime Minister who has repeatedly criticised the social chapter and a Foreign Secretary who has decried the “back-breaking” weight of EU employment regulation, so we need to ensure that we secure clear guarantees in the Bill.
Amendment 306 also addresses the concerns of the former President of the UK Supreme Court, Lord Neuberger. On 8 August, he raised concerns about clause 6(2) and the position in which it will leave the judiciary on the interpretation of EU retained law. Clause 6(2) states:
“A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”
On which Lord Neuberger said that if the Government
“doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair.”
Amendment 306 would address those concerns by removing the vague reference to
“if it considers it appropriate to do so”
and by requiring UK courts simply to take account of CJEU decisions in relation to employment, equality and health and safety rights. Lord Neuberger was right to flag that deficiency in the Bill, which we need to resolve.
Mr Grieve
Is not part of the problem that this is an area of law that has quite a political—with a small “p” —aspect? In reality, this law has been entrenched when it comes from the EU, and it represents a number of areas that have been treated by some as fundamental rights.
The difficulty for the judiciary is that they will be asked to continue interpreting this law—this is the nub of it—without real political guidance as to what emphasis they should attribute to it in future in light of the emphasis it has been given in the past. It is not just any old law but something rather more complex and, for that reason, it is more sensitive to the judiciary’s interpretation.
Paul Blomfield
The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306.
I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period.
We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law.
Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman’s name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister’s clarification. We support amendment 358, which would help with the interpretation of EU retained law.
I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.
The Minister of State, Ministry of Justice (Dominic Raab)
It is a great privilege and pleasure to speak on behalf of the Government on this essential Bill, and particularly on clause 6 and the various amendments proposed to it. The Bill is complex, but at root it boils down to achieving two basic but fundamental objectives, which it is worth bearing in mind as we consider the clause and amendments.
The first is that we are delivering on the referendum by taking back control over our laws, which is a major opportunity; that was the No. 1 reason why people voted to leave the EU in the referendum. The second thing that the Bill does is make sure there is legal certainty, with a smooth transition for citizens and businesses, mitigating one of the key risks of Brexit, which I believe is felt by people whether they voted leave or remain.
Sir Edward Leigh (Gainsborough) (Con)
It is essential that the Supreme Court has certainty. The first part of clause 6(2) is admirably clear:
“A court or tribunal need not have regard to anything done on or after exit day by the European Court”.
Why then have the Government included the following phrase at the end of the provision:
“but may do so if it considers it appropriate to do so”?
I think Lord Neuberger has a point, and I give the Minister an opportunity to make the Government’s position clear.
Dominic Raab
I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend’s point.
Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court—an affirmation of the supremacy of our own courts and our own legal order.
Mrs Maria Miller (Basingstoke) (Con)
My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?
Dominic Raab
First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised.
The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.
Dominic Raab
May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions—common law, around the Commonwealth and elsewhere.
Mr Grieve
A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.
Dominic Raab
I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.
Hilary Benn
The Prime Minister has accepted that in a transitional period, the European Court of Justice would govern the rules of which we are part. Will the Minister explain to the Committee how that is compatible will clauses 5 and 6, which say that the ECJ will have no further sway after exit day, which the Government propose to set as 29 March 2019? Do the Government intend to amend the Bill as it proceeds through Committee to reconcile those two things, or do they propose to do it in the new Bill that the Secretary of State announced yesterday?
Dominic Raab
I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.
Dominic Raab
If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—
Dominic Raab
I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled.
I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.
Dominic Raab
I am going to make a little more progress, but I will give way to my right hon. Friend in due course.
The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way.
We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.
Mr Kenneth Clarke
The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—
Dominic Raab
I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.
Dominic Raab
Let me finish my point.
Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.
Mr Leslie
I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?
Dominic Raab
I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.
I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.
Sir Oliver Letwin
I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?
Dominic Raab
I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
Dominic Raab
I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.
Dominic Raab
My right hon. and learned Friend is very tempting, but not at this moment.
I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.
Sir William Cash
I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?
Dominic Raab
The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House—whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.
Robert Neill
I will not claim credit for all the ingenuity of the drafting, as I hope I shall make apparent in due course, but what if I told my hon. Friend that it is based on the work of the International Regulatory Strategy Group—one of the most distinguished groups of practitioners in this field? Would he think again about totally dismissing the thing, recognise it as a serious point that needs to be addressed here and engage with it?
Dominic Raab
I absolutely will not dismiss it. I am happy to think twice, thrice and as many times as my hon. Friend wants to talk to me about it. But let me make a couple of points to illustrate the risk of uncertainty that his amendment would cause. Subsection (A3) of amendment 357 begs the question of whether retained EU law restrains acts or omissions that start within the UK but that may have effects outside of it. Equally, subsection (A5) conflates functions conferred on public bodies with those of the Secretary of State. They are not the same thing. I sense that, underpinning this, he is trying to legislate in advance for unknown unknowns. I understand that temptation but if we go down that path, there is a countervailing but very real risk of increasing, rather than mitigating, the legal uncertainty. With respect, I hope that he can be persuaded to withdraw his amendment.
Robert Neill
In order that I might reflect on that as the debate goes forward, perhaps my hon. Friend would like to give me an example of the circumstances in which he thinks my amendment might increase the legal uncertainty, rather than assist it. I will obviously listen to that.
Dominic Raab
Well, I have just given two examples regarding subsections (A3) and (A5) of my hon. Friend’s amendment, but I would be happy to sit down with him and give some illustrative examples of how, in practical terms, I think that this is not actually the avenue or legal cul-de-sac that he wants to go down.
If my hon. Friend will forgive me, I will now turn to some of the other amendments in order that I give them due consideration in this important debate. In particular, I want to turn to amendment 278 and linked amendments 279 to 284 concerning exit day, which are from the Leader of the Opposition and other hon. Members.
The Prime Minister made it clear in her Florence speech that
“The United Kingdom will cease to be a member of the European Union on 29 March 2019.”
It is clear that the UK will leave the EU at the end of the article 50 process—some of the suggestions around the caveat are wildly unrealistic. The Government have tabled an amendment to make sure the drafting of the Bill is crystal clear on this point and to give the country—businesses and citizens alike—additional certainty and a measure of finality on it.
These amendments would replace that clarity and finality with uncertainty and confusion. They would alter the meaning of the term “exit day” in the Bill, but only for the purposes of the provisions of clause 6. For those purposes, but for those purposes alone, the UK would not leave the EU until the end of the transitional period. I am afraid that that would create damaging legal uncertainty, and the amendments are flawed. They would have the effect that, for the duration of any implementation period that might be agreed—and we hope one will be, sooner rather than later—all the important provisions on the interpretation of retained EU law set out in this clause could not apply; they could take effect, if I have understood correctly, only from the end of that period. Since we have not yet agreed an implementation period with our EU partners, the effect of the amendments would be to create an indefinite and indeterminate transitional period, which rather raises the question of whether the Labour party is really serious about facilitating the process of a smooth Brexit at all.
Paul Blomfield
Rather than seek to confuse the issue, it would be helpful if the Minister clarified whether it is the intention of the Government to accept the jurisdiction of the Court of Justice of the European Union during the transitional period. Yes or no?
Dominic Raab
The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty.
My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK.
Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.
Dominic Raab
I have given way to hon. Gentleman before. I am going to make some progress.
That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.
That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.
Mr Grieve
I actually agree—I should make this clear to my hon. Friend—about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.
Dominic Raab
I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do.
I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point.
That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end.
Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.
Joanna Cherry
I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.
Dominic Raab
I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.
Antoinette Sandbach
I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?
Dominic Raab
I understand the point that my hon. Friend is making, although I do not accept that characterisation. It is absolutely right that cases that are procedurally before the dock of the court, if I may put it like that—that have been lodged before exit day—will continue to conclusion. However, in relation to facts that may or may not give rise to a cause of action at an indeterminate point in the future, we would end up with a long tail of uncertainty if we went down the path that she suggests. I gently say to her that it will be possible to continue those cases before the UK courts because of the way in which we will retain EU law. There would be more, not less, uncertainty for citizens and businesses alike if we allowed the kind of indeterminate access to the court that she suggests.
Mrs Gillan
Surely, the Minister is ignoring the legitimate expectation that I have talked about. Frankly, if the Government do not look again at the matter, it will constitute an abuse of power, because it will remove from individuals rights that they legitimately expected to carry through to the end of a case.
Dominic Raab
My right hon. Friend makes an interesting point about legitimate expectations. I think there is an equally legitimate expectation, demand and need to have some finality to the legal and institutional arrangements that give rise to cases before the European Court.
Dominic Raab
Perhaps I can give way to my right hon. Friend when I come on to her amendments.
I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.
Dominic Raab
I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.
Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.
I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.
The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.
Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.
I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.
Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.
Sir Oliver Letwin
May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that
“the Supreme Court is not bound by any retained EU case law”.
It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?
Dominic Raab
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
Mr Grieve
I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied—purposively—or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?
Dominic Raab
I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?
Antoinette Sandbach
I may be able to assist the Minister with the explanatory notes.
Dominic Raab
That is kind, but I will make some progress; otherwise I will lose the thread in relation to amendment 303.
The amendment is at odds with the clear and certain position set out in the Bill, because it would continue to bind UK courts to some post-exit ECJ decisions and case law where the matters giving rise to the case have occurred before our exit. Those judgments would continue to be binding even after an implementation period. Strictly interpreted, the amendment would go further still. It would apply to anything happening before exit day and so would also include ECJ judgments on cases referred from outside the UK. For example, a preliminary reference made by another EU member state in relation to the interpretation of EU law might also fall within the scope of the amendment, if the facts of the case arose before exit day. The consequences would be far-reaching and risk creating considerable uncertainty and practical difficulties for the administration of justice.
UK courts and tribunals would continue to be bound by some new ECJ judgments for an indeterminate period. Those binding judgments could continue to be issued long after we have left the EU as cases continue to progress to the European Court from across the EU. Yet those judgments would not have formed part of the snapshot of retained EU case law that, under clause 6(3), will be binding on our courts, so far as is relevant, and subject to the rule in clause 6(4). By contrast, such post-exit judgments would bind our courts in all circumstances, including where the retained version of an EU regulation had since been modified by this Parliament or a devolved Administration. That would create foreseeable and entirely avoidable uncertainty, and it would not be necessary, because individuals whose cause of action predates our exit would, of course, continue to be able to take their case to the domestic courts, even if after exit they cannot reach the European Court. That is the fundamental point in relation to the procedural framework.
I now turn to amendment 304, tabled by my right hon. Friend the Member for Chesham and Amersham, in relation to retaining ECJ referrals and jurisdiction for anything that happened before exit day. In leaving the EU, we will bring an end to the jurisdiction of the ECJ—we have made that clear. The proposed amendment would frustrate that objective, because our courts could continue to make references to the ECJ in relation to cases where relevant matters have occurred before our withdrawal from the EU. As a result, different rules and processes would apply for those cases, compared with those where the relevant circumstances arose after exit day. That would, I fear, give rise to more not less uncertainty, because it would be impossible to predict for how long UK courts would continue to be subject to binding judgments from Luxembourg.
When we exit the EU, we will know exactly how many pending UK cases are registered with the European Court, awaiting a preliminary reference and thus covered by any proposed agreement we have with the EU on the treatment of pending cases. That is important to deliver certainty about how and when the Court’s jurisdiction in the UK will be brought to an end. The amendment would remove that certainty. Like amendment 303, it is not necessary. Individuals will not lose their ability to vindicate their rights in court after exit. They will be able to take such cases to our domestic courts.
Forgive me, Sir David, but I thought it necessary to address my right hon. Friend’s amendments in detail. Equally, I want to say that I recognise the eloquence and the force with which she champions her constituents. Ministers will take away the underlying issue that she has brought and powerfully moved for consideration. I hope that on that basis she will not feel she needs to press the amendment.
Mrs Gillan
I am following the Minister’s arguments very carefully, with helpful interventions from some of my colleagues. I appreciate that this is a very tricky matter, but it does relate to my constituent. I am therefore grateful that the Minister has undertaken to take the proposal away and look at the principle in relation to this case, because I feel that it would be most unjust not to do so. I have no love for the European Court of Justice and I want the Bill to go through, but not at the cost of justice for my constituent. This case has thrown the matter into stark relief. I am grateful to the Minister for that undertaking and I look forward to talking to him further on the matter.
Dominic Raab
I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings.
I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them.
The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.
Dominic Raab
I am going to make a little bit more progress. I have given way to my hon. Friend.
The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306.
Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.
Mr Duncan Smith
My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?
Dominic Raab
My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns.
To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.
Joanna Cherry
I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.
I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.
Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as
“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.
We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.
The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.
Stephen Gethins
I am loth to interrupt my hon. and learned Friend, who is making a powerful case for legal certainty, but does she agree that a wide range of industries and other organisations will need legal certainty, certainly around freedom of movement, such as our education sector and food and drink sector? Does she also share my concerns about the reports that have come from the Financial Times this evening that the Secretary of State for Exiting the European Union says that bankers and other professionals have been promised a special post-Brexit travel regime? If we are going to have freedom of movement and the benefits that brings, we should not just be protecting the bankers.
Joanna Cherry
I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here.
To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress.
We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.
Mr Marcus Fysh (Yeovil) (Con)
Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?
Joanna Cherry
My amendment 137 seeks to ensure that:
“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”
The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.
This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.
The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:
“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—
she means “we, the judges”—
“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”
In my submission, under my amendment, statute would tell the judges the answer.
That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—
Joanna Cherry
I will just finish my point, then I will give way to the hon. Gentleman.
The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.
Sir William Cash
I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?
Joanna Cherry
I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution.
As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.
The Solicitor General (Robert Buckland)
I am listening with great care to the hon. and learned Lady. She will agree that references to the Court of Justice are made by the courts to interpret a particular provision of EU law, not by individuals. That is an important difference that I am sure she will appreciate.
Joanna Cherry
The Solicitor General is absolutely right to correct my rather loose use of language. My point is that the majority of references made to the Court of Justice are made as a result of litigation between individuals or businesses to determine their respective rights rather than, as the Government’s position paper suggested in the summer, between the United Kingdom and the EU. That is not my view; that was the evidence of Professor Sir David Edward, who gave evidence on this topic to the Scottish Parliament in September. He was keen to impress on people that EU law is about the determination of individuals’ rights.
Mr Duncan Smith
That interchange was quite correct, but does the hon. and learned Lady also accept that the process of making those judgments is where the Court of Justice has widened the interpretation of the treaties by using individual cases that were sent to the Court for clarification?
Joanna Cherry
That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman’s real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself.
Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals’ rights. If the UK’s courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.
Hannah Bardell (Livingston) (SNP)
Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.
Joanna Cherry
I agree with my hon. Friend, and that is probably why the TUC supports my amendment.
To keep rights up to similar international standards is particularly desirable in areas that require a degree of co-operation and reciprocity, such as consumer rights, equality protections and environmental standards. The Exiting the European Union Committee, of which I am a member, has heard much evidence recently about the importance of preserving rights protections after Brexit. EU case law has had an important impact on equality rights in the UK, and my amendment seeks to ensure that British courts will continue to pay due regard to that jurisprudence as our law develops. I urge all hon. Members to give amendment 137 their support in the interests of achieving legal certainty, protecting the rule of law, protecting the judiciary from political attacks and protecting our constituents’ rights.
I turn now to pending cases and amendments 202 and 203, which I am grateful to the Law Society of Scotland for drafting. There is currently nothing on the face of the Bill about what will happen to litigation pending at the time of exit day. There just is not anything. If there is, I am sure a Minister will point me to it later.
As the right hon. Member for Chesham and Amersham said, this is all about legitimate expectations. As I said when I intervened on her, if the Government do not move in the Bill to protect the legitimate expectations of litigants, they could find themselves being litigated against for failing to provide an effective remedy.
Of course, it would be objectionable on the ground of retrospectivity if a simple cut-off happens on exit day and if no consideration is given to pending cases, as other hon. Members have said. Such a situation is not without precedent. As I said in my intervention on the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), one precedent is the way in which the transition from the Privy Council to the New Zealand Supreme Court was dealt with, and I urge the Government to look at that. I urge all hon. Members carefully to consider the amendments designed to protect pending cases and pending litigation on exit day.
Mr Duncan Smith
I have not tabled any amendments, but I will briefly comment on one set of amendments before making a point about the drafting of clause 6. For me and many of my colleagues, that is the most important clause because the clear definition of being in or out of the European Union ultimately comes down to the Court of Justice’s ability to change the United Kingdom’s laws by direct reference as a result of a clash with European law.
Twenty-five years ago, I stood in almost the same place, during the House’s consideration of the Maastricht treaty, to make the point that the Court of Justice is more political than courts in the UK, even by its appointments and by the nature of its judgments. Judicial activism is a process that came directly from the Court of Justice, and it eventually percolated, to a much lesser extent, into the UK courts.
It is through those judgments that the Court of Justice has widened the concept of where the Commission is able to rule. A good example is that, through Court reference, whole areas of social security that were never in the original treaties were widened dramatically. Rulings have been made on the application of social security payments to individuals from countries that were never referenced in the original treaties, which is a good point about the Court’s power.
This is so critical because, after the referendum, the Centre for Social Justice, the Legatum Institute and others came together to do a lot of polling asking the public why they supported the vote to leave the European Union. The single most powerful reason—more than money and more than migration—was to take back control of our laws. I was slightly surprised because I thought it was an esoteric point for most members of the public, but they said it was their most powerful reason for voting. Some people said that, even if it meant they would be worse off for a period, it was still the overriding principle behind their vote to take back control and leave the European Union.
With that as the key, the Government are right to drive this policy. It is absolutely right for them to make it clear that, on the day we leave, the European Court of Justice will cease to have direct effect in the United Kingdom. I will return to the drafting on how long some of the other principles will continue.
The hon. Member for Nottingham East (Mr Leslie) is not here at the moment but, in line with the earlier statement by the Minister, my hon. Friend the Member for Esher and Walton (Dominic Raab), it would be wrong to support new clause 14 and amendment 278. There is a simple principle behind the Bill, and the Government have now accepted that there will be primary legislation on the agreement, or lack of agreement, as we leave the European Union with regard to our trade and other arrangements. The new clause and the amendment are wrong because they would seek to bind the hand of the Government as they sought to negotiate, and that is not the purpose of this.
Let me give an example. Not so long ago, the Secretary of State for Exiting the European Union said clearly that his view was that during the implementation period—at the beginning, we hope—we would want to have those elements of the eventual agreement in place. One of those would be a process of arbitration between the UK and the EU. If that was agreed and was part of the process, and then became part of the implementation period, the new clause and the amendment would prevent our being able to make that arrangement—they would be bound into law and we would not be allowed to go into the implementation period with these arrangements. That would immediately knock out any opportunity we have to accelerate the process of where we would eventually be by getting into the implementation period and applying an arbitration process agreed between the EU and the UK for those areas of disagreement on areas of law and other interpretations. That is why these proposals are wrong and would damage the prospects of the negotiations that are likely to take place.
Wera Hobhouse
I asked a couple of days ago about this idea of an arbitration court. Now that the right hon. Gentleman is here, will he clarify how it would be different for ordinary people in the street in comparison with what the ECJ is currently doing?
Mr Duncan Smith
The whole process of arbitration is a natural one in all trade arrangements between two different groups: they agree to an arbitration process when there are clashes of interpretation about what they have agreed. That is standard practice; it has been in pretty much every free trade arrangement.
If we seek a free trade arrangement, the way to have that governed is through such an arbitration process, where differences—when things cannot be agreed between the two—are taken for a final process of examination and some kind of judgment about the matter. That would not be done by the Court of Justice sitting in the European Union, or by a UK court; it would be outwith both of those, but in the agreement.
The point I am making is that if such an arrangement was agreed in a free trade arrangement, we would want to start it as soon as possible, because if there is an implementation period, we would want to start implementing what we have agreed as soon as possible. The hon. Lady needs to look up most of the other trade arrangements to see what I am saying. We want to give the greatest flexibility to the Government. It is crucial that as we leave, we leave the Court of Justice in that sense.
I want now to deal with some of the arrangements in clause 6. I say to Ministers that there is a certain amount of confusion over where the courts are meant to reference the ECJ, including in respect of its previous judgments. As has been mentioned by some of my colleagues, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), there remains a confusion as to where the courts will reference judgments from the ECJ, both past and existing. I come back to the point of clause 6(2), where they are told not to have regard to anything. However, the Bill later goes on to modify that quite a lot. I am particularly concerned—this has been raised elsewhere—by the definition that
“’retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they”.
The Bill goes on to reference exactly how that will work.
My point is that those principles will themselves be modified by the European Court of Justice as it goes forward. My question really is: as they are modified, at what point will UK courts consider those principles to be no longer relevant to their judgments as they refer to them? I do not expect an answer right now, but I hope to get one as we go forward. Lord Neuberger has made the point that it is unclear to the courts how strong their reference should be—whether they should reference the principles or not. The point about the principles is the more powerful point, because I have no idea when the cut-off comes or whether it ever comes—whether we will ever break free, as it were, from continuing judgments and changes to the European Court principles.
Mr Grieve
My right hon. Friend makes an important point, but I wish to emphasise that my own concern is not about retaining EU law in some way, but about getting some clarity, which is certainly not in the Bill. My right hon. Friend may agree that from listening to the Government it does not appear that they are particularly concerned about this matter—yet the judiciary plainly is, and the House cannot ignore that.
Mr Duncan Smith
I agree with my right hon. and learned Friend. It is important that during this and future debates—we will have the opportunity to return to this issue in the debate on clause 5—my right hon. and hon. Friends in the Government take due regard of this issue. The courts have already said that they are unclear and want clarity. It is not always usual for courts to come back and say that they want us to decide, but on this matter they really do. That is important, because there has to be a future point at which they understand that they do not have to have regard to any change in the European Court principles.
I urge my right hon. and hon. Friends in the Government to make that point very clear in the course of this process, and I look forward to their response. I think the Minister, my hon. Friend the Member for Esher and Walton, said that he would return to this issue in the discussions on clause 5, and I would certainly appreciate that.
I know that other Members wish to speak, so I shall conclude. I applaud and support the Government on this part of the Bill. For me, and I think for most of our colleagues, it is the most important element. We can debate money and all these other issues, but who ultimately decides on our laws is the most important element of the vote to leave. I made this point earlier, and I conclude by making it again: the single issue on which the British public voted most was to take back control of their laws. I want that to happen as we leave the European Union.
Helen Goodman
I am pleased to follow the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), because his remarks about a new arbitration system relate very much to the points I wish to address.
When I consider the Bill, my overriding concern is the impact on the economic wellbeing of my constituents. Members know that the north-east is a successful exporting region. Part of the reason why we have been so successful is that we have had a stable legal framework over the past 40 years. The Bill’s purpose is obviously to provide continuing legal certainty, but it seems to me that the combination of the Government’s proposal to set the exit date before the transition period is over, and their red line on the ECJ, will have the rather remarkable effect of minimising the flexibility for negotiation and maximising the legal uncertainty.
I very much support amendments 278 and 306, to which my hon. Friend the Member for Sheffield Central (Paul Blomfield) spoke, and new clause 14, tabled by my hon. Friend the Member for Nottingham East (Mr Leslie).
Earlier, I asked the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker): if the 1972 Act is repealed before the end of the transition or implementation period, what will be the legal basis of our relations with the EU in that period and of the 57 free trade agreements that the EU negotiated with third countries? He said, “Don’t worry, it will all be set out in the next Bill, which will come in perhaps a year or 18 months.” I am sorry to say that I do not find that very reassuring. I am conscious that businesses want an element of legal certainty about the transition period as soon as possible. Waiting for another 12 months, or another 18 months, does not give them that legal certainty, which means that they can continue to close plants and divest. We are already beginning to see that. Frequently, it is not being flagged up as being about Brexit, but it is happening rather too often.
Wes Streeting (Ilford North) (Lab)
Does my hon. Friend not find it extraordinary that so many Government Members, including those on the Treasury Bench and at the Dispatch Box, have deviated from the position set out so clearly by the Prime Minister in her Florence speech? She said that during the implementation period—transition in everyone else’s terms—the existing structure of EU rules and regulations would be in place to provide the certainty that she has described. That is not what we have been hearing this evening.
Helen Goodman
No, my hon. Friend is absolutely right. The problem is this dissonance between the content of the rules and the enforceability of the rules.
I just want to stress this point about the impact on exporters. In the Minister’s description of how the transition period and the future might pan out, there seemed to be no acknowledgement that, in addition to some of these disputes and rights that citizens will be claiming, whether they are under competition law or in the single market, there will also be citizens in this country making claims in the other European countries, or the other 57 third-party countries. In order to export, these countries need to have more certainty about their data protection—we will come on to that another day—about professional recognition, particularly the services, about licensing and about passporting. If those rights are not enforceable, they will be losing that certainty.
At the moment, we have a situation in which half the exports of this country go to the European Union, and 30% go to the other 57 countries in which the EU has negotiated the legal framework. We are talking about 80% of this country’s trade and this Government are not able to tell us what the legally enforceable base will be during the transition period.
The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) said that it would be very nice if we could have a new arbitration system. Well, I am sorry, but that does not seem to be on offer. At the moment, there are three possibilities. One possibility is continuing with the ECJ, but the Government have set their face against that. Another possibility is to join the European economic area, but the Government have set their face against that. The third possibility is to crash out. The option of the bespoke arbitration system with the European Union will be extremely difficult to negotiate in the 15 months that we have left before the transition period begins.
Seema Malhotra
With so many organisations and bodies, such as the judiciary, businesses and the Law Society, talking about the uncertainty that comes from clause 6, does my hon. Friend not agree that it is very challenging to believe the Government that this will be all right on the night when an alternative dispute mechanism would need to be created, designed, drafted, legislated for and in place before we leave the European Union?
Helen Goodman
My hon. Friend is absolutely right. It is not just one alternative system; it is 58. It is one with the EU and another 57 with everybody else. This is really not going to happen, and Ministers need to get their heads round the fact that they have some hard choices to make, and they need to be straight with their own Back Benchers and with the public about what those choices are.
The Government are being irresponsible in wanting to repeal the European Communities Act 1972, which is the basis of our membership, and in setting the date at the beginning of the transition period, before they can tell us how they are going to handle that period. It would be great if they could give us a proper explanation because we have not had one yet. Ministers say that the whole purpose of the Bill—the very thing that the Bill is driving at—is legal certainty, but they cannot tell us what the legal position will be in 18 months’ time. The Bill is flawed and I urge Ministers to look constructively at the amendments tabled by the Opposition Front Bench.
Robert Neill
I approach the Bill in exactly the same spirit as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made clear earlier in the debate. However much I think we have harmed ourselves with the decision to leave the European Union, we have to ensure that we deliver it in an orderly fashion. That is critical in the legal area and in the business area.
The City of London is the financial hub of the whole of Europe, and we want it to stay that way, but it requires legal continuity and certainty to do so. Now, I accept that the Bill seeks to do this—I have no problem with the intentions behind the Bill—but it is worth stressing the importance of the sector and, therefore, the importance of the detail. Bear in mind that euro clearing involves transactions being processed every day through London to a value which exceeds our annual contribution to the European Union by a significant sum, and which significantly exceeds any likely divorce bill figure that has been bandied about.
The fact is that we are the basis for the euro bond market and we clear a great deal of euro business, and that generates and supports thousands of jobs. Some 36% of the population of my constituency are employed in financial and professional services. I am not going to do anything that puts their jobs at risk or reduces their standard of living. Those who voted to leave did not vote to make us poorer for the sake of a bit of ideology. We now have to find a practical means forward to ensure that we have, as the chair of the City of London’s policy and resources committee put it, an orderly Brexit as opposed to a disorderly one. Therefore, the test of the Bill’s contents is whether they achieve the Bill’s stated objective of trying to assist in that orderly Brexit and withdrawal. Well, it does up to a point, but my contention is that it only goes so far. There are number of areas where the Bill is lacking, which is why it needs improvement, and this set of amendments deals with precisely one of those areas.
The incorporation of the acquis into UK domestic law is accepted all round as being necessary, but the debate has highlighted a number of significant areas where there is still uncertainty and where the current wording may not achieve its objective. I want to see a deal on the basis of the Florence speech. I hope that all Government Members will stand behind the Florence speech and will not attempt to rewrite it, refine it, add to it or subtract from it. If we do that constructively, we can make good progress. I am sure that the Ministers on the Treasury Bench wish to achieve that too—well, almost all of them. But to do that we must ensure that we give the courts and contracting parties the certainty that they need.
My final example is that derivative contracts are generally written over a three to five-year period. Unless there is certainty as to the enforceability of those contracts, people will not contract with counterparties in the European Union. Crashing out without a deal would not give them that certainty any more than going on to WTO terms will give the financial services any certainty. It would not give the London legal services sector any certainty, doing nothing to address the establishment directive or the recognition of professional rights that currently enable British lawyers to gain and earn millions of pounds for this country annually in the work that they sell into the European Union.
All those things need to be done. I doubt whether we could get the detail done by the end of March 2019, and that is why a significant and proper transition, in which we can work out the details, is absolutely necessary. Let us make sure, then, that we enable the Bill to achieve that through some additions and changes to what is in it.
Stephen Kinnock (Aberavon) (Lab)
The hon. Gentleman rightly points out that a transition deal is required and that the Prime Minister’s Florence speech said that that would be on the basis of the jurisdiction of the European Court of Justice, and the EU institutions have also said that it has to be on the basis of the ECJ. With that remarkable degree of alignment between the British Government and the EU, should we not now get the Government to confirm once and for all that the transition deal is on the basis of ECJ jurisdiction?
Robert Neill
I must confess that I do not see what some people’s difficulty is with the jurisdiction of the ECJ for a short period. At the end of the day, as everybody concedes, there has to be an arbitral mechanism. I rather agree that it will be difficult to invent one in time, and there may be alternatives, but, as the Justice Committee’s report in the last Parliament pointed out, the involvement of the ECJ in these areas is often extremely limited in terms of the overall amount of our jurisprudence in the courts. It would be foolish to rule out accepting it for a limited period to see us through transition.
Let me move on to the specific points here. We do need to pick up on certain areas. We have to have greater clarity on the interpretation of retained EU law. With every respect to Ministers, I do not think that the Bill will achieve that in its current form, although I think that it can, with further work.
Stephen Hammond (Wimbledon) (Con)
Like my hon. Friend, I am keen to see that one of our major industries is preserved. Is not the overwhelming merit of his amendments 357 and 358 that they would preserve the Government’s ability to modify the regulations but give certainty on day one because they would deliver a functioning set of rules that could be on the statute book and would therefore take into account some of the cases he mentioned earlier? The key thing for the financial services industry is to have that certainty on day one.
Robert Neill
That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier.
Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve.
These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and TheCityUK, and I am indebted to the Remembrancer’s Office of the City of London corporation for the drafting of these amendments—it takes the credit for the ingenuity.
The Solicitor General
I absolutely take the spirit in which these amendments are made, and I am grateful to the Remembrancer’s Office, but does my hon. Friend not agree that we need to be cautious? He thinks that this general interpretive approach will, of itself, amend deficiencies, but does the fact not remain that we would still have to amend deficiencies in legislation, even with these otherwise helpful-looking provisions?
Robert Neill
I do not disagree with the Solicitor General about that, but I suggest that it is not an either/or scenario. I very much hope that he will indicate that he is prepared to continue working with me and the authors of the amendments to take this forward. I see that he nods his assent, and I am sure that we can find a constructive means of doing so.
Let me explain why this is important. The first of the rules, in subsection (A3), would confine the territorial scope of the retained EU law to the UK. That would put it on the same territorial footing as domestic law, therefore ensuring that as a general principle, retained EU law would no longer enable or require people or businesses in the UK to do, or to stop doing, something in an EU country. It is perfectly logical from that point of view.
The second rule would ensure that reference to a member state in an EU law that has been domesticated was taken, post Brexit, as a reference to the UK. That would ensure that domesticated EU law would in fact fully apply in the domestic sphere, removing any ambiguity on that point. That will be necessary in a large number of instances to avoid the situation in which the UK will, in effect, be treated as a third country for the purposes of its own laws where retained EU law is currently framed by reference to the whole EU. That would be an absurdity, and we are seeking to remove that risk.
The third rule, in subsection (A5), would transfer all the functions exercised by EU bodies to the Secretary of State. I take the Minister’s point that not all those will necessarily be exercised by the Secretary of State. It is not prescriptive in that way—it need not be, and we can talk about that—but it would deal with the many instances where such functions are transferred to an appropriate Secretary of State as well as providing, again, a legislative backstop to cater for circumstances where the alternative arrangements had not been put in place in time, so that there is no cliff edge in that regard.
The fourth rule deals with the many situations where domestic authorities are required, either outright or as a precondition, to exercise their own functions to deal with EU bodies or authorities in member states. What does that mean in practice? It covers, for instance, cases where the UK body has to notify, consult or get the approval of an EU body before taking a particular course of action.
Stephen Hammond
Is not the overwhelming advantage of this rule not that it would put any legal constraints on an authority but that it would allow flexibility to co-operate, making it more likely that we would achieve an equivalent regulatory solution more quickly?
Robert Neill
That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets—regulatory equivalence will be critical to achieving that—and it would do so without the risk of facing any inappropriate legal constraints on the UK’s own operations once we have left.
I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day.
Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.
The Solicitor General
For the sake of clarity, I think that my hon. Friend will find that schedule 8(25) contains enough scope for other documents of the type that he mentions to be considered by the courts. I hope that I have given him enough reassurance on that point.
Robert Neill
I am grateful to the Solicitor General for that clarification. Perhaps he could confirm that he is happy to meet me and we can discuss that. [Interruption.] He says that he is of course happy to do so. I am grateful to him for that very constructive response, and characteristically so. That will enable us to deal with things like negotiating texts, which we sometimes know of as the travaux préparatoires within the EU context. [Interruption.] Again, the Solicitor General confirms that that is the sort of thing that we can discuss.
Why is that important to the International Regulatory Strategy Group, and why is the group central to this? Its membership includes virtually all the significant representative institutions of the London financial community: the stock exchange, the Association for Financial Markets in Europe, the Association of British Insurers, the British Bankers Association, the City of London corporation and major commercial organisations such as Credit Suisse, Aviva, Allen & Overy, Allianz, Fidelity, HSBC and Lloyds. The list includes all the key underpinners of the City’s operation.
We need to take those important matters into account, and I am grateful to the Solicitor General for his willingness to meet and discuss them. I commend to him and other Ministers the observation made by my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) about the Francovich cases. It clearly cannot be the Government’s intention to remove people’s opportunity to seek remedies for wrongs that were done prior to our departure. My right hon. Friend raises a critical issue, and it is important to get this right.
I hope that Ministers will observe that the guidance in clause 6(2) is clearly not sufficient to meet the concerns of our senior judiciary and that they have said as much. When Lord Neuberger, a distinguished President of the Supreme Court, says that, ironically, the discretion is so wide that it puts judges at a degree of risk of political attack, he has to be taken seriously. Several right hon. and hon. Members have praised the quality of our judiciary, and I totally agree with them. We ought to listen very carefully when our judiciary say that, as a matter of protection against malicious attack of the sort that they have suffered in the past, they look to Parliament to safeguard their ability to function independently in cases that are quite politicised.
The Solicitor General
I am listening with care to my hon. Friend. Will he accept from me that there is another danger, namely that by using too many prescriptive words in the Bill, we could fetter the discretion of the courts in a way that they would find equally unacceptable? There is a balance to be struck here.
Robert Neill
There is, and that is why it is all the more important—perhaps unusually so—for Government to talk quietly with the judiciary to find out what they are saying. They cannot compromise their independence, but those of us who are in touch with them want to make sure that the Government understand the root of their concerns. I am sure that there is a constructive way forward on that.
I know that the Solicitor General will be aware of the problem, because it was referred to in the Justice Committee’s report in the last Parliament. I also draw his attention to the concerns raised by Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, in the evidence that he gave only a couple of days before he retired from that post. He gave a pretty clear steer on the sort of thing that could be helpful and posited various types of language. I hope that the Solicitor General accepts that we need to look further at the matter, and I hope that we can do that constructively as we take the Bill forward.
Preet Kaur Gill (Birmingham, Edgbaston) (Lab/Co-op)
Many of my constituents and the businesses in my constituency have raised the importance of a transitional period. The UK transition will inevitably bring with it changes to the way in which goods and services are traded between the UK and the EU, and, although businesses on both sides are beginning to anticipate and plan for change, the scope and nature of the changes are as yet unclear. The consequences could range from moderate to significant disruption to current rights and freedoms. The issue goes far beyond banking and impacts on any business that sells goods or services between the UK and the EU.
The negotiation of a new future relationship is a process separate from the article 50 negotiations, and at present there is no indication that a new long-term agreement on trade and services will be in place at the point of exit. Businesses in the UK and the EU face three unknowns: what the future will look like, when the arrangement will be in place and what will happen in the period between the end of the current EU framework and the start of the future framework. That is why transitional arrangements are essential to avoid a damaging cliff-edge effect at the point of exit.
Businesses, customers and regulators will need time to adapt and settle into a new framework. A transition period would reduce the risk of businesses making potentially premature decisions about the structure of their operations. This is why negotiating and embedding transitional arrangements in a withdrawal agreement between the UK and the EU would give both sides a greater degree of visibility and certainty in planning for the future. Clause 6 of the Bill makes it clear that the UK courts will not need to keep even half an eye on the case law of the ECJ. In legislative terms, this is as clear a statement as we can get that the UK courts will not have to follow ECJ decisions, directly or indirectly, post-Brexit.
Mrs Miller
The debate on this string of amendments includes considering clause 6 stand part. I was extremely pleased that, after my intervention earlier, the Minister indicated that the Government intend to bring forward an amendment on Report to take up what I believe is an important recommendation made by the Women and Equalities Committee in the report we published in February. The recommendation is to have a mandatory ministerial statement of compatibility with the Equality Act for all Bills and secondary legislation related to exiting the EU.
This is important because the Government have set out very clearly that they do not want any backsliding on our equalities agenda or, indeed, our equalities law when we leave the EU. With the sort of amendment that my hon. Friend mentioned, we will have more of a guarantee that that will actually happen. The EU White Paper published in February says very clearly that the Government want to ensure that
“the same rules and laws will apply on the day after we leave the EU as they did before.”
This approach will preserve the rights and obligations that already exist in the UK under EU law and provide a secure basis for the future.
Certainty is needed in relation not only to the laws themselves, but to the frameworks within which those laws will operate. The Select Committee’s inquiry into exit from the EU found that things will change for individuals after we leave the EU because the UK courts will no longer be able to disapply law that is found to be incompatible with equality laws, as is currently the case with the CJEU. The UK will lose the particular function of the CJEU as an arbiter of incompatibility with the principles of equality. For the Government to achieve the important objective that they have set out of protecting equality rights as they are now, we will have to do more than simply transpose the legislation; we must also provide such additional functionality.
This really matters to our constituents. It really matters to women such as Carole Webb, who was fired by her employer for being pregnant. She had her case heard in the CJEU, and her rights were enforced. It really matters to mothers such as Sharon Coleman, who just wanted to be able to work more flexibly to care for her disabled son. She had her case heard by the CJEU, and her rights were enforced. We need to make sure that this continues in the future.
The very sensible and practical recommendation put forward by the Women and Equalities Committee proposed a simple solution for the Government. It is that a statement of compatibility should be published by Ministers when any statutory instrument or Bill related to EU withdrawal is published to explain why the proposals are or are not compliant with the Equality Act. That would mirror the provisions set out in sections 19 and 4 of the Human Rights Act 1998. This would make it clear to the courts that they must take account of the Equality Act, and that if legislation was incompatible, the courts could indeed make a declaration of incompatibility, which would have to be rectified by the Government, as is now the case.
This recommendation is important because, as I have said, it will enable the Government to adhere to what they have set out as their policy. It will fill a missing gap that currently is filled by the Court of Justice of the EU, and it will give the courts in the UK the potential power to make declarations of incompatibility. For those looking to the public sector equality duty to partially fill that gap, I would point out that we set out very clearly in our report that this duty does not apply to primary legislation, and that is why such a change is needed.
Mrs Helen Grant (Maidstone and The Weald) (Con)
My right hon. Friend is making a powerful case, as always, for equality. Does she agree that co-operation on issues such as female genital mutilation, human trafficking and other gender-based crimes should also be included in the exit agreement?
Mrs Miller
My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend.
I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I want to speak briefly in support of amendment 137, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who spoke so persuasively about the need to strengthen and clarify clause 6, particularly subsection (2).
If, utterly regrettably from my point of view, the UK is to leave the EU, it is important not only that there is a functioning statute book on exit day, but that it is as accessible and comprehensible as possible. The ordinary citizen must be able to understand their rights and obligations; businesses need to have clarity about the rules under which they will be trading and competing; and our courts require clear guidance about Parliament’s intentions. The rule of law and our economic interest require that. As it stands, however, there is still much work to do to achieve those aims, and that includes rectifying the lack of clarity in clause 6.
My starting point is clause 6(3), about which I do not think there is any dispute. Clearly, unmodified retained EU law should be interpreted in accordance with retained case law and principles of EU law. That is necessary to ensure that the statute book applies in the same way after exit as it did before. Immediately after that, however, we get into sticky territory, namely the status of post-exit European case law.
In the first months and years after exit, few cases in the CJEU will concern new EU rules that have nothing to do with the UK. Most will continue to relate to rules that existed before exit and that will in fact have been incorporated into the UK statute book by this Bill. In essence, such decisions by the CJEU are about how the law always was and should have been applied, including immediately prior to exit.
With apologies for moving away from highbrow discussions about the rule of law and the sovereignty of Parliament, I want to talk about the hypothetical EU widget regulations. If the EU widget regulations come into effect prior to exit, and a decision of the CJEU shortly after exit clarifies that the regulations do indeed apply to a new and cutting-edge form of six-sided widget, that decision would actually tell us and clarify what retained EU law was on Brexit day—the point at which it was incorporated into our laws. Yet the Bill appears to fudge or dodge the issue of whether such a ruling should be followed or even whether it should be given any consideration at all. Parliament is in danger of passing the buck to judges on what is actually a political decision.
Unlike his German counterpart, the UK manufacturer of a six-sided widget is unclear about where he stands and, importantly, so are our judges. Given that the widget directive is part of retained law, there is a strong argument that this Parliament should say that if the CJEU confirms in its judgement—despite it being handed down after exit—that when we incorporated the regulations they did apply to a six-sided widget, that should also be part of retained law in the United Kingdom, unless there is good reason to the contrary. That would seem sensible and desirable from a legal theory point of view and, much more importantly, from a practical point of view. If we are to make trade and competition with the EU as simple as possible, surely it makes sense for exactly the same rule, one still found in an EU regulation and one incorporated by the Bill into domestic law, to be interpreted in the same way unless there are very good reasons to the contrary. However, all clause 6(1) says is that a court or a tribunal is not bound by post-Brexit CJEU decisions, and clause 6(2) merely says it can “have regard to” such case law
“if it considers it appropriate to do so.”
Lord Neuberger says that that is not very helpful guidance for judges. Neither is it helpful for the six-sided widget manufacturer, who needs to know whether he must comply with the widget regulations and is not sure if domestic courts will follow the CJEU in deciding whether it does. Indeed, we might even find that courts in different parts of the United Kingdom could come to different decisions about whether to follow the CJEU’s decision on the widget regulations. Parliament has to do much better.
Amendment 137 provides alternative options. If there are reasons why domestic courts should not want to follow a CJEU ruling, the court could quite simply have regard to and then decline to follow the Court’s judgment. There could be very good reasons for that to happen, for example if Parliament had already decided to put in place its own separate statutory regime for six-sided widgets. Ultimately, if Parliament decides after a particular judgment by the CJEU that it wants to change retained law to take a different course, it can of course do that. However, there are many more rules where it would surely be sensible for this Parliament to leave them in place as they are and to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible.
Patrick Grady (Glasgow North) (SNP)
Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.
Stuart C. McDonald
I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.
We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.
Sir Oliver Letwin
It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.
It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:
“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.
As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.
The Solicitor General
I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.
Sir Oliver Letwin
With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.
The Solicitor General
What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.
Sir Oliver Letwin
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
Mr Grieve
I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court’s jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.
Sir Oliver Letwin
Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.
Mr Jenkin
I understand the words
“in accordance with any retained case law”
in clause 6(3)(a), but I do not understand the words
“any retained general principles of EU law”.
That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.
Sir Oliver Letwin
Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other.
I feel sure that the reason clause 6(3)(a) says that the court should judge
“in accordance with…any retained general principles”
is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a).
This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),
“not bound by any retained EU case law”,
but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.
Mr Leslie
The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.
Sir Oliver Letwin
The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.
Sir William Cash
My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,”
and that must include this Bill.
Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.
Sir Oliver Letwin
I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much.
My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.
Wes Streeting
It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who, in uncharacteristic fashion, had to knock several lumps out of his own Front Bench to get it to see sense around some obvious problems with clause 6. I have chosen to rise at this point in the evening to pick up on some of the inconsistencies and flaws, revealed during this debate, in the insufficient—in some cases, absent—replies from the Government Front Bench.
My hon. Friend the Member for Sheffield Central (Paul Blomfield) asked the Minister very clearly whether the jurisdiction of the ECJ will apply during the transition period. I do not believe the Minister has addressed that, but I am happy to give way if he would like to do so now.
Dominic Raab
The hon. Gentleman was not here for large parts of the debate; if he reads Hansard, he will see that that was addressed very squarely.
Wes Streeting
For the benefit of viewers who have just tuned in on BBC Parliament, I am happy to give way to the Minister a second time if he would like to state very clearly for the record whether, in his view, on that fundamental point, the jurisdiction of the ECJ will apply during the transition period. It is a very simple question and it only requires a yes or no answer, but he will not respond.
Mike Gapes
I suspect that the Minister has been taking lessons from the Foreign Secretary. He says that we should read Hansard, but perhaps we will find a giant lacuna there, and perhaps these issues will come back to haunt him.
Wes Streeting
I have to agree with my hon. Friend, but I am happy to be generous and give way to the Minister again. This is a very simple yes or no question.
Dominic Raab
The hon. Gentleman is very kind, but neither he nor the hon. Member for Ilford South (Mike Gapes) has been in here for the entirety of the debate. This issue has been addressed squarely. We are not going to pre-empt or prejudice—[Interruption.]
Wes Streeting
I am not sure that the Minister had a chance to finish his point, and I would be happy to give way again so that he can answer this central question. It is a simple question. The reason why the issue is so problematic is that many of us have been listening carefully to the concerns being expressed in many sectors of our economy about the uncertainty surrounding Brexit. We have heard a simple message: that the biggest risk to this country’s economy at this time is uncertainty.
If the Government want to reassure those sectors of the economy—manufacturing businesses with supply chains in the European Union, for example, or financial and professional services worried about whether contracts will still be honoured and upheld or whether jobs and activity can be relocated—they could give those industries the central message that during the transitional period, the existing structure of EU rules and regulations will apply.
Mr Kenneth Clarke
Perhaps I may assist the hon. Gentleman. I was present during the debate when the Minister addressed this question and, so far as I can remember, he did not answer this perfectly straightforward question at all.
Wes Streeting
I am grateful to the right hon. and learned Gentleman. I am sure that if he did not hear a clear answer, most other Members did not hear one either. This is a golden opportunity for the Minister to answer the question. The Secretary of State has now arrived in the Chamber. Perhaps he will be able to help the Minister out. The simple question is whether, during the transition period, the European Court of Justice will still have jurisdiction in the way that it does at present. Can the Secretary of State give us clarity on this one point? This is a simple and fundamental question—[Interruption.] Come on!
Wes Streeting
Ah, the real power behind the throne! I will give way to the hon. Gentleman.
Mr Rees-Mogg
I am grateful to the hon. Gentleman for giving way. The answer ought to be perfectly clear. If we are still under the jurisdiction of the European Court of Justice, we will not have left the European Union.
Wes Streeting
I am grateful to the hon. Gentleman for setting out in the House today the consistent view that he has held throughout the referendum campaign and during the debates that have followed.
The Government have a fundamental problem. This is not about whether it is the will of the House that the ECJ should have jurisdiction during the transitional period. I think that most Members, whether they voted leave or remain, understand the central importance of giving business certainty right at this moment about what will happen when we leave the European Union. The Prime Minister understood that when she made her speech in Florence, in which she said that, during the transition period,
“the existing structure of EU rules and regulations”
would apply. She also said that we could agree
“to bring forward aspects of that future framework such as new dispute resolution mechanisms more quickly if this can be done smoothly.”
The implications are clear. It was the Prime Minister’s view in Florence that, to provide business with the certainty that it needs now about jobs and economic activity, we would remain in the single market and the customs union and, necessarily, under the jurisdiction of the European Court of Justice for a time-limited transition period.
Stephen Timms (East Ham) (Lab)
Is my hon. Friend as puzzled as I am that Ministers are unwilling to support the policy of the Prime Minister? The Prime Minister made her position very clear, when answering a question from the right hon. and learned Member for Rushcliffe (Mr Clarke), that the writ of the European Court of Justice would run during the transitional period, or at least at the start of it.
Wes Streeting
I am just as bewildered as my right hon. Friend. Many Members may not have seen it, but the front page of The Daily Telegraph tomorrow carries a splash entitled “The Brexit mutineers”. On that front page, Members will find people such as the right hon. Member for Broxtowe (Anna Soubry), the hon. Member for Bromley and Chislehurst (Robert Neill), the right hon. and learned Member for Rushcliffe (Mr Clarke) and other Conservative Members who have done nothing else during the course of this debate but try to get the Government to a position whereby we leave the European Union in a way that provides the most clarity, the most certainty and the most stability, which is in the interests of our economy.
Actually, as my right hon. Friend the Member for East Ham (Stephen Timms) mentioned, the real Brexit mutineers are not people such as the right hon. Member for Broxtowe because, ironically, the Members on that front page are upholding the principles of the Florence speech. The real Brexit mutineers are members of the Prime Minister’s Cabinet, and they are in the Department for Exiting the European Union and in the Foreign and Commonwealth Office. Those people are the real Brexit mutineers, and they should be explaining why they are not prepared to back the clear positon set out by their own Prime Minister.
Anna Soubry
Does the hon. Gentleman share my concern that what he describes is a blatant piece of bullying that goes to the very heart of democracy? None of the people who have been named—I take it as a badge of honour—want to delay or thwart Brexit; we just want a good Brexit that works for everybody in our country. That is not a lot to ask for in a democracy.
Wes Streeting
I wholeheartedly agree with the right hon. Lady. I know that she is not someone to be pushed around. In fact, when I looked at the front page of The Daily Telegraph, I saw a whole range of principled Conservative politicians with whom I have a number of disagreements, but I look to them as distinguished parliamentarians who always act in what they believe to be the best interests of their constituents and their country.
That brings me to the central challenge at this point in the Brexit negotiations. Manufacturing firms with supply chains in the European Union are having to make decisions now, before Christmas, about jobs and activity and about whether to renew contracts or sign new ones. The clear message from financial services and professional services, the concerns of which the hon. Member for Bromley and Chislehurst has attempted to address through his amendments, and from other leading sectors of our economy is that unless there is a clear sense of direction and some reassurance about the rules of the transition period and how it will operate, they will be forced to activate contingency plans as early as now and before Christmas, but certainly into the first quarter of 2018. The clock is ticking, and time is running out. In muddying the waters during the course of today’s debate, Ministers have done nothing at all to reassure businesses that are hovering over activating their contingency plans.
Stephen Doughty
I completely agree with my hon. Friend about the importance of certainty, and I support what he says about the transition. Does he agree that what is crucial for certainty is ruling out a no-deal, catastrophic Brexit, about which so many people are worried? Many businesses in my constituency are now hedging against it, because they are fearful of the consequences.
Wes Streeting
I wholeheartedly agree. We hear this fallacy that those of us who warn about a no-deal Brexit are somehow willing to sign up to any kind of bad deal—as if there is a bad deal that could possibly be worse than no deal.
I would like to hear an intervention from anyone on the Government or Opposition Benches who can explain how crashing out of the European Union over a cliff edge with no deal—meaning an immediate end to all existing contractual and legal obligations and to all the frameworks and protections, a hard border in Ireland, and the end of our trading agreements not only with the European Union, but through the European Union to countries across the world—could be worse than any kind of transitional deal. No deal would be the very worst deal, and it is astonishing that there are Government Members who not only entertain the possibility of no deal, but are enthusiastically encouraging it with the views that they put forward.
There have been many problems with the Prime Minister’s approach to Brexit, but in the Florence speech she tried to set out a practical and flexible framework through which we could now give certainty to business about the transition period and, crucially, through which there would be only one set of changes from our membership of the European Union to our future relationship with it once we leave.
This evening, the Government Front-Bench team have driven a coach and horses through the Florence speech. They cannot provide business with the clarity it needs on how the European Court of Justice will operate during transition. They ought to support our position, which is to remain in the single market and the customs union for the time-limited period of transition, because that would give business the certainty it desperately needs.
For Conservative Members to put their ideological vanity against the best interests of the British economy is selfish, reckless and irresponsible, and people should have no truck with it.
Mr Grieve
I will pick up two or three points that have been made in this important debate. There have some magnificent contributions, particularly from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I will start with what he had to say because it is central to the debate.
I appreciate what the Government have been trying to do with clauses 5 and 6 on the way in which retained EU law should be interpreted. I agree with my right hon. Friend that the wording is opaque, although I think that I understand the Government’s intention on the role and supremacy of the Supreme Court in developing law, but that still does not get us away from the fundamental problem that EU law is different from our law. Its rules of interpretation are different and its purpose is different.
We will come back to that problem right through this Bill, whether on the charter of fundamental rights or the general principles of EU law. We cannot just take EU law and drop it into our law without leaving guidance on what the Government expect that law to be used for. I worry that the lack of explanation is most peculiar. It is not a question of wanting to keep EU law—I assume that it will all ultimately go away, anyway—but in the meantime there is a lack of clarity, and I can well understand why the judiciary, particularly the senior judiciary, are troubled by the lack of guidance. It is almost as though the Government have found it too embarrassing to want to grapple with it. They want to maintain continuity, but they do not want to maintain the implication of continuity because that is a difficult message to sell to some Conservative Members.
We will really have to look at this as we go through the Bill, and I am quite prepared to try to help the Government to find a way through. It is not that I want to keep its aura, and there are many Conservative Members who do not like it at all, but the simple fact is that we need to look at it.
The other issues that have been raised are absolutely right, but they are not relevant to this debate. We do not have the slightest clue what the transitional arrangements will be. We will have to have a completely separate piece of legislation to sort that out, and I suspect it will take a long time to go through this House. Ultimately, if we have a long-term agreement, there will be an interesting issue about whether we will be instructing our courts to mirror EU law so as to maintain comity with the Court of Justice of the European Union or risk constantly having to readjust our legal frameworks for the sake of that deep and special relationship.
I do not want to disappoint some of my right hon. and hon. Friends too much, but the harsh reality is that our geographical location and our desire to have a close trading relationship with the European Union will inevitably mean that decisions of the Court of Justice of the European Union continue to have a major influence on our law here—I am afraid that was rather disregarded in last year’s referendum. I think that it is called globalisation, and we will have to return to that as we go along.
Dominic Raab
We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.
Dominic Raab
I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.
Mr Leslie
I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.
Dominic Raab
I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.
Mr Leslie
Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.
Question put, That the clause be read a Second time.
European Union (Withdrawal) Bill
Wednesday 15th November 2017
(7 years, 11 months ago)
Commons ChamberEuropean Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 November 2017 - (15 Nov 2017)
18:27 - The Committee divided: - Ayes: 295 / Noes: 311 - Question accordingly negatived.
18:44 - divided: - Ayes: 299 / Noes: 311 - Question accordingly negatived.
21:59 - The Committee divided: - Ayes: 295 / Noes: 313 - Question accordingly negatived.
22:15 - The Committee divided: - Ayes: 297 / Noes: 313 - Question accordingly negatived.
22:30 - The Committee divided: - Ayes: 48 / Noes: 313 - Question accordingly negatived.
Sir William Cash (Stone) (Con)
On a point of order, Dame Rosie. On the yesterday’s selection list—and, in part, today’s—there are some extremely helpful references to the page numbers of this enormous wodge of amendments. Would it be possible for the Clerks to be good enough to put the page numbers on the selection list for easy reference, because it is sometimes quite difficult to find the amendments at short notice?
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I will certainly bring that to the attention of the Public Bill Office and see what we can do to help.
New Clause 2
Retaining Enhanced Protection
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend or modify retained EU law in the following areas—
(a) employment entitlement, rights and protections;
(b) equality entitlements, rights and protections;
(c) health and safety entitlement, rights and protections;
(d) fundamental rights as defined in the EU Charter of Fundamental Rights.”—(Matthew Pennycook.)
This new clause would prevent delegated powers from other Acts being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.
Brought up, and read the First time.
The Second Deputy Chairman of Ways and Means
With this it will be convenient to discuss the following:
New clause 15—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—
“HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.”
This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK law if the UK had remained a member of those institutions beyond exit day.
New clause 25—Treatment of retained law—
“(1) Following the commencement of this Act, no modification may be made to retained EU law save by primary legislation, or by subordinate legislation made under this Act.
(2) By regulation, the Minister may establish a Schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Regulations made under subsection (2) will be subject to an enhanced scrutiny procedure including consultation with the public and relevant stakeholders.
(4) Regulations may only be made under subsection (2) to the extent that they will have no detrimental impact on the UK environment.
(5) Delegated powers may only be used to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of environmental protection.”
This new clause provides a mechanism for Ministers to establish a list of technical provisions of retained EU law that may be amended by subordinate legislation outside of the time restrictions of the Bill.
New clause 50—Continuing validity in the United Kingdom of European Union law—
“(1) The European Communities Act 1972 shall continue to have effect in the United Kingdom after the date on which the United Kingdom leaves the European Union as if the United Kingdom continued to be bound by the Treaties.
(2) Accordingly all such rights, powers, liabilities, obligations and restrictions created or arising by or under the Treaties, and all such remedies as provided for by or under the Treaties, as in accordance with the Treaties are without further enactment given legal effect or used in the United Kingdom shall continue to be recognised and available in law, and be enforced, allowed and followed accordingly.
(3) Subsections (1) and (2) do not apply to any primary legislation passed by Parliament coming into force after the date of exit from the European Union which includes a provision to the effect that that Act, or specified provisions of that Act, have effect notwithstanding the provisions of section (Continuing validity in the United Kingdom of European Union law)(1) and (2) of the European Union (Withdrawal) Act 2017.”
New clause 51—Duty of review of European Union law—
“(1) The Prime Minister must lay before Parliament within six months of the date of the United Kingdom leaving the European Union, and at least once a year thereafter, a review of all European Union legislation and decisions still applicable to the United Kingdom, with proposals for re-enactment, replacement or repeal by the United Kingdom Parliament of any provisions of European Union law, with or without modification, as United Kingdom legislation.
(2) The House of Commons may appoint or designate one or more select committees to consider any report under subsection (1).”
New clause 55—Treatment of retained law (No. 2)—
“(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act.
(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State after approval in draft by both Houses of Parliament, which must include consultation with the public and relevant stakeholders.
(4) Delegated powers may be used only to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of equalities, environmental and employment protection, and consumer standards.”
This amendment would qualify the powers conferred to alter law by statutory instrument after exit day.
New clause 58—Retaining Enhanced Protection (No. 2)—
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend, repeal or modify retained EU law in the following areas—
(a) employment entitlement, rights and protection;
(b) equality entitlements, rights and protection;
(c) health and safety entitlement, rights and protection;
(d) consumer standards; and
(e) environmental standards and protection.”
This new clause would ensure that after exit day, EU-derived employment rights, environmental protection, standards of equalities, health and safety standards and consumer standards can only be amended by primary legislation or subordinate legislation made under this Act.
Amendment 200, in clause 2, page 1, line 12, after “passed” insert “and commenced,”.
Amendment 87, page 1, line 19, at end insert
“or any enactment to which subsection (2A) applies.
‘(2A) This subsection applies to any enactment of the United Kingdom Parliament which—
(a) applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006,
(b) applies to Scotland and does not relate to matters specified in Schedule 5 to the Scotland Act 1998,
(c) applies to Northern Ireland and does not relate to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”
This amendment would alter the definition of EU retained law so as only to include reserved areas of legislation. This will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.
Amendment 201, page 1, line 19, at end insert—
“(2A) For the purposes of this Act, any EU-derived domestic legislation has effect in domestic law immediately before exit day if—
(a) in the case of anything which shall apply or be operative from a particular date, applies or is operative before exit day, or
(b) in any other case, it has been commenced and is in force immediately before exit day.”
Clause 2 stand part.
Amendment 217, in clause 3, page 2, leave out lines 13 to 22.
This amendment, along with Amendment 64 to Schedule 8 would exclude the European Economic Area agreement from the Bill, allowing the UK to remain in the EEA.
Amendment 356, page 2, line 22, at end insert—
“(2A) A Minister of the Crown may by regulations provide for prospective EU legislation to form part of domestic law as it has effect in EU law, from the time at which it begins to apply or from some later time.
(2B) In subsection (2A) “prospective EU legislation” means—
(a) an EU regulation which is adopted, notified or in force immediately before exit day, or
(b) EU tertiary legislation made under retained EU law, so far as it is not operative immediately before exit day.
(2C) A statutory instrument containing regulations under subsection (2A) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
The amendment would allow Ministers, with parliamentary approval, to apply EU legislation which has been passed before exit day but does not take full effect until after that day, along with subordinate measures made for the purposes of EU legislation which is retained under the Bill and taking effect after exit day.
Clause 3 stand part.
New clause 29—Parliamentary vote on withdrawal from European Economic Area—
“The requirement of this section is that each House of Parliament has passed a resolution in the following terms—
That this House supports the United Kingdom’s withdrawal from the European Economic Area.”
This new clause describes the requirement for each House of Parliament to agree to withdrawal from the European Economic Area and is linked to Amendment 128 which makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on such agreement.
Amendment 128, in clause 9, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the requirement of section (Parliamentary vote on withdrawal from European Economic Area) have been met.”
This amendment makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on the requirement for separate agreement on withdrawal from the European Economic Area of NC29.
New clause 22—EEA Agreement—
“(1) No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise.
(2) Regulations under this Act may not make any provision that would constitute a breach of the United Kingdom’s obligations under the EEA Agreement.
(3) Regulations under this Act may not amend or repeal subsection (1) or (2).”
New clause 9—European Economic Area—
“The United Kingdom shall, after exit day, remain a member of the European Economic Area as set out in the European Economic Area Act 1993, and the provisions in Part 2 of Schedule 8 relating to the United Kingdom‘s membership of the EEA shall not take effect until such time as Ministers have published a White Paper assessing the costs and benefits for the UK economy of remaining a member of the European Economic Area after exit day.”
This new Clause would ensure that the UK can remain a member of the European Economic Area until such time as Ministers publish a specific assessment in the form of a White Paper setting out the costs and benefits for the UK of remaining a member after exit day.
New clause 23—EFTA membership—
“The Secretary of State shall, no later than six months after this Act has gained Royal Assent, lay a report before Parliament setting out an assessment of whether it would be in the interests of the United Kingdom to join the European Free Trade Association (EFTA) and, if so, whether it should remain a party to the EEA Agreement as a member of EFTA.”
New clause 45—European Economic Area (No. 2)—
“Nothing in this Act authorises the Prime Minister to give notice under Article 127 of the EEA Agreement of the United Kingdom’s intention to opt out of the EEA.”
Amendment 64, page 54, in schedule 8, leave out paragraphs 12 to 17.
This amendment would retain the provisions of the European Economic Area Act 1993 as part of domestic legislation beyond exit day.
Matthew Pennycook
It is a pleasure to serve under your chairmanship, Dame Rosie.
I will speak to new clause 58. Clauses 2 to 4 provide for the preservation of EU and EU-related law post-exit day in a new category of law, retained EU law, which itself comprises three principal sub-categories. Clause 2 provides that existing domestic legislation that implements EU law obligations remains on the domestic statute book after exit day. This will be known as EU-derived domestic legislation and includes, for example, secondary legislation enacted under section 2(2) of the European Communities Act 1972 for the purpose of implementing EU directives.
Clause 3 converts direct EU legislation into domestic legislation at the point of exit. This covers EU law, such as EU regulations and decisions that have direct effect in the UK because the UK is an EU member state, but which would fall once the UK is no longer bound by the treaties. Clause 4 provides that any remaining EU rights and obligations that do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties that are sufficiently clear, precise and unconditional as to confer rights directly on individuals.
The purpose of new clause 58 is straightforward. It is to ensure that retained EU law, as preserved in clauses 2 to 4, in five key areas—employment, equality, health and safety, consumer and environment—is accorded a level of enhanced protection that it would otherwise not enjoy from delegated powers contained in Acts of Parliament other than the one before us today.
Lady Hermon (North Down) (Ind)
I am grateful to the hon. Gentleman for allowing me to make an early intervention. For clarification for those of us who represent constituencies in Northern Ireland, is it intended by the Labour party that these amendments would extend to Northern Ireland? If so, what consultation has the Labour party had with any of the political parties in Northern Ireland about the content of the amendments?
Matthew Pennycook
With all due respect, that issue will be more prominently dealt with during the days of debate on devolution. I understand that EU retained law will apply across the United Kingdom.
In the respect that I set out, new clause 58 is broadly similar in its intent to new clauses 25 and 55, both of which have as their primary purpose the prevention of modification of retained EU law save by primary legislation or by subordinate legislation made under this Act. If pushed to a vote we would be minded to support either of those new clauses.
The array of rights, entitlements, protections and standards that we currently enjoy as a member of the European Union are underpinned by EU provisions. They either have direct effect as a result of the treaties or are protected in delegated legislation under the ECA. Either way, they currently enjoy a form of enhanced protection as a result of this underpinning. After the UK has left the EU, that enhanced protection will fall away. The Opposition have repeatedly emphasised that Brexit must not lead to any watering down or weakening of EU-derived rights, particularly rights and standards in the areas of employment, equality, health and safety, consumer and environment. Working in conjunction with our amendments relating to clauses 7, 8, 9 and 17 that seek to limit and constrain the sweeping Executive powers contained in this legislation, new clause 58 seeks to guarantee that rights, entitlements, protections and standards in these areas are not just transposed and maintained, but are effectively protected thereafter.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is making some very important points. I, too, support new clause 58 and the provisions in new clauses 55 and 25. New clause 58 makes a clear point about the protection of equality rights. In the light of the wonderful news that came overnight from Australia about marriage equality, does he agree that it is crucial that we send out a signal to the LGBT+ community in the United Kingdom that we respect their rights and will retain them?
Matthew Pennycook
I could not agree more. That is exactly what new clause 58 would do; it would provide enhanced protection for equality, rights and protections after we have left the EU.
Taken at face value, clauses 2 to 4 appear relatively straightforward. But, as many hon. Members who spoke in yesterday’s debate made clear, the Bill as drafted creates a considerable degree of ambiguity and uncertainty as to the status of retained EU law. Currently the status of rights, protections and standards underpinned by EU law is distinct.
Treaty provisions and regulations that take effect through section 2(1) of the ECA are neither primary nor secondary legislation. The principle of the supremacy of EU law and the ECA means that, in practice, they have a particular constitutional status that enables them to take priority over primary legislation enacted by Parliament. Similarly, secondary legislation made under section 2(2) of the ECA is distinct from other secondary legislation in that it could take priority over primary legislation because of the fact that it is giving effect to an EU law obligation. Primary legislation that gives effect to an EU law obligation could be amended by Parliament, but any removal of an underlying EU law could be challenged in the courts.
Post-exit, it is unclear what status—primary, secondary or something else entirely—retained EU law will have. From schedule 1, one might draw the inference that retained EU law has the characteristics of secondary, rather than primary, legislation. Yet paragraph 19 of schedule 8 provides that, for the purposes of the Human Rights Act 1998, direct EU legislation
“is to be treated as primary legislation”,
although this schedule does not cover those rights recognised and made available in domestic law after exit by means of clause 4.
Clauses 5 and 6 provide guidance as to how the courts should interpret retained EU law in the event of a conflict with an enactment passed after exit day, but it is not yet clear—as we debated at length yesterday—whether the courts will treat particular retained EU laws as constitutional legislation that is not susceptible to implied repeal.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness of the legislation and it is crucial that it is clarified and addressed on the face of the Bill. But, irrespective of what status particular retained EU laws are eventually accorded, this new category of law—detached from the enhanced protection enjoyed as a result of being underwritten by our membership of the EU—will be vulnerable to amendment not just from the delegated powers contained in this Bill, but from subordinate legislation contained in other Acts of Parliament.
Caroline Lucas (Brighton, Pavilion) (Green)
The hon. Gentleman is making a powerful case. Does he agree that if we are to have the deep and special relationship that Ministers say they want with the rest of the EU, we have no choice but to continue to harmonise our standards on employment rights, equality, and health and safety? Even if they were not good things to do in their own right, which they are, it will be crucial to keep those standards at the same level as the EU or higher if we are to have that kind of trading relationship.
Matthew Pennycook
The hon. Lady makes a good point. Of course we will need to do that, and businesses will have to comply with those standards. That is why we need to ensure that the EU and EU-derived rights we have are underpinned by an enhanced status. We will then need to move on to the conversation—which we will have to have—about how to stay in some form of regulatory alignment, if we want the type of deep and comprehensive deal that I think both sides envisage.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I have been listening carefully to the hon. Gentleman’s speech. Does he accept that so many of these rights existed before we joined the EU and will still be there after we leave the EU? They are not, and need not be, dependent on the European Union. It is this place that will and can safeguard those rights.
Matthew Pennycook
The hon. Gentleman may have missed my point. I completely accept the fact that these rights will be brought into UK law, that they will not be underpinned by EU provisions and that many of them were there first and have been added to over the decades of our membership. What we are talking about here is ensuring that retained EU law cannot be chipped away at by secondary legislation—that it has an enhanced status and must be amended only by primary legislation debated in full in this Chamber.
Mr Dominic Grieve (Beaconsfield) (Con)
The hon. Gentleman is right. It is the curiosity of this legislation that laws that the public, if we were to raise these issues with them, would regard for the most part as being of very considerable importance are being brought to the lowest possible status on their return here, and without there really being an opportunity, for obvious reasons, to revisit this issue domestically in a way that might lead us to enact fresh legislation.
Matthew Pennycook
I could not have put it better myself. That is precisely the problem, and that is precisely what new clause 58 seeks to address.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness, but irrespective of what happens, retained EU law, as defined in the Bill, is vulnerable to secondary legislation contained in other Acts of Parliament, which will have been drafted in a very different context—in the context of a country whose long-term future appeared to reside unambiguously in the European Union.
Perhaps the most potent example is the Legislative and Regulatory Reform Act 2006. Part 1 provides for Ministers to introduce statutory instruments to remove burdens resulting from legislation, including primary legislation. A burden, for the purpose of that part of the Act, includes a financial cost or
“an obstacle to efficiency, productivity or profitability”.
That Act is a potent piece of legislation as it is, but it will be far more so as a result of this Bill if it can be used to alter a raft of EU rights and protections that are currently underpinned by EU provisions.
This is not just about the powers in the Legislative and Regulatory Reform Act. Other examples come to mind, such as section 5 of the Localism Act 2011 and section 11 of the Public Bodies Act 2011. All contain wide powers to alter regulations, and all were passed in the constitutional context of our rights and protections being underpinned by our EU membership. All will become more powerful after exit today.
Retained EU law would also be vulnerable to recently proposed legislation and legislation currently making its way through this place. For example, the Nuclear Safeguards Bill, which is currently in Committee in this House, contains proposed new clause 76A(6) to the Energy Act 2013, which provides that the delegated power in section 113(7) of the Energy Act can be used to make changes to retained EU law. Similarly, clause 2(6) of the recently published Trade Bill provides for regulations that can be used to modify primary legislation, including retained EU law. The same, we can only assume, is likely to be the case for the immigration, agriculture and other Bills we expect in the coming months as part of the process of legislating for Brexit.
New clause 58 would ensure that regulations of the kind provided for by those Bills could not be used to amend or repeal retained EU law in the five areas I have set out, thereby according them a level of enhanced protection. That is important because any future Government could easily use secondary legislation contained in a variety of past and future Acts of Parliament to chip away at rights, entitlements, protections and standards that the public enjoy and wish to retain.
In the interests of brevity, let me illustrate the risks posed if we do not pass new clause 58 or a similar new clause, by focusing on employment entitlement, rights and protection. As hon. Members will know, a substantial part of UK employment rights is derived from EU law, and an even larger body is guaranteed by EU law. As such, key workers’ rights enjoy a form of enhanced protection. Those include protections against discrimination owing to sex, pregnancy, race, disability, religion and belief, age, and sexual orientation; equal pay between men and women for work of equal value; health and safety protection for pregnant women, and their rights to maternity leave; a degree of equal treatment, in broad terms, for the growing number of fixed-term, part-time and agency workers; rights to protected terms and conditions, and rights not to be dismissed on the transfer of an undertaking; and almost all the law on working time, including paid annual leave and limits on daily and weekly working time.
Whether it is the working time regulations guaranteeing rights to holiday pay and protections from excessive working hours, which will be preserved via clause 2 of this Bill, or the right to equal pay contained in article 157 of the treaty on the functioning of the European Union, which will presumably be preserved via clause 4, these rights will not enjoy enhanced protection after exit day and will be at risk of amendment from regulations set out in other Acts of Parliament if this new clause or a similar one is not passed.
Now, it is true the Government have promised to ensure that workers’ rights are fully protected and maintained after the UK’s departure from the EU, but in the absence of stronger legal safeguards, there are good reasons to be sceptical about that commitment.
Alison McGovern (Wirral South) (Lab)
Does my hon. Friend agree that, given the political events of this year, it has become ever more uncertain who the Government might be in the future? Therefore, all of us have the job of protecting the process and the institutions of our democracy, because we never know what might happen in the future.
Matthew Pennycook
I agree with that, and I agree—I think this was also my hon. Friend’s point—that the public will expect these rights to continue to have the protection they have enjoyed while being underpinned by EU law. These rights should not have a reduced level of protection in the future.
Matthew Pennycook
I will make a little more progress if that is all right.
Let me remind the House of the sentiments on the Government Benches when it comes to workers’ rights. Throughout the referendum, prominent leavers drew attention to what they claimed was the high cost of EU employment regulations, including those such as the working time directive and the temporary agency work directive. Prominent members of the Cabinet are on record as having called for workers’ rights to be removed. For example, the Foreign Secretary has written that we need
“to root out the nonsense of the social chapter—the working time directive and the atypical work directive and other job-destroying regulations.”
During the referendum, on 18 May 2016, the then Minister for Employment, the right hon. Member for Witham (Priti Patel), went so far as to call for the UK to
“halve the burdens of EU social and employment legislation”
in the event of Brexit. The newest member of the Brexit ministerial team—Lord Callanan—has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and
“all the other barriers to actually employing people.”
Just this week, the hon. Member for North East Somerset (Mr Rees-Mogg) made a speech in London calling for, among other things, deregulation. It was retweeted and then hastily deleted, as we heard yesterday, by the Department for International Trade.
Tom Brake
I wonder whether the hon. Gentleman is about to quote Mr Dyson. When leave supporters wanted to quote a business, it was usually Mr Dyson’s or JCB. Now that Mr Dyson welcomes the fact that leaving the EU means he will be able to hire and fire people more easily, I wonder whether they will quote him quite so often.
Matthew Pennycook
I was not going to quote Sir James Dyson, but the right hon. Gentleman has, happily, added to my remarks.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
I am flattered that the hon. Gentleman pays such close attention to my speeches. I was talking about regulation in the City of London, not employment regulation. I think there is now consensus across the political firmament that employment regulations will remain in place, which is one of the reasons why his new clause is not necessary.
Matthew Pennycook
I am happy to be corrected on that point, but I would say to the hon. Gentleman that it is a bit rich to suggest that the many public pronouncements that have been made on employment rights over many years by so many Conservative Members have been forgotten entirely and that Conservative Members are suddenly the champions of enhanced workers’ rights. We do not believe that, which is why we need legal safeguards in the Bill.
Matthew Pennycook
I am going to make some progress.
It may be the case that pragmatism and electoral appeal trump ideology, but there is no guarantee, and that is the point. We should not take risks with rights, standards and protections that have been underpinned by EU law. Hard-won employment entitlements, along with entitlements relating to the environment, health and safety, equalities and consumer rights, should not be vulnerable to steady erosion by means of secondary legislation outside of the powers contained in this Bill. In future, Ministers should be able to change the workers’ rights and other rights that came from the EU only through primary legislation, with a full debate in Parliament. On that basis, I urge hon. Members on both sides of the House to support new clause 58.
Helen Goodman (Bishop Auckland) (Lab)
On a point of order, Dame Rosie. Yesterday’s selection list meant that it was not possible to debate the amendments on the customs union or on the European agencies. I do not say this as a criticism of the Chair—obviously, a selection has to be made—but these are extremely important areas of European law, which, as the current schedule stands, we will not now have an opportunity to debate. However, the Government did say that they were prepared, if need be, for extra time to be given to the Committee stage in the House. How might we facilitate securing more time to debate these extremely important issues?
The Second Deputy Chairman of Ways and Means
Obviously I would not comment on the order of selection on the Floor of the House, but the Leader of the House is here and I am sure that she will have heard the hon. Lady’s comments.
Mr Grieve
It is a pleasure again to be able to participate in this debate.
The new clause in the name of the Leader of the Opposition raises a really important issue about the way in which the Government have approached the whole question of retained EU law. To be clear at the outset, and it is worth repeating, the Government’s aim—to bring EU law into our own law, retain it there to ensure continuity and then, over time, to take such steps as this Parliament wishes to take to replace it or change it—makes absolute sense. But as we discussed yesterday, the difficulty that arises is that the origins of EU law mean that it has come into the law of this country in ways that are totally different from our usual process of primary and secondary legislation. [Interruption.] Does my hon. Friend the Member for Stone (Sir William Cash) wish me to give way? I thought that he said something from a sedentary position.
Richard Drax (South Dorset) (Con)
I said, “That’s why we are leaving”, in response to my right hon. and learned Friend’s comments.
Mr Grieve
I understand that that is why my hon. Friend thinks we should go. As he knows, I personally think that in the globalised world in which we operate, as we mentioned yesterday, the notion that the only source of law is likely to be the domestic Parliament of one’s country is rather fanciful, given that we are currently subordinate or have signed up cheerfully to all sorts of areas of international law without any difficulty at all. I accept, without wishing to go over old ground, that the way in which EU law operates in this country through its direct effect does pose some issues that have particularly exercised my hon. Friend the Member for Stone. Nevertheless, the idea that all sources of law in this country come from this House is wrong, full stop.
The question is how we make sure that in bringing this law into our own law, we preserve its essence—because that is what the Government say they want to do—until such time as we as a domestic Parliament decide that we want to do something about it. The problem that has arisen is that, as currently drafted, the importation of EU law means that standards in areas such as equalities and the environment will no longer enjoy the legal protection that EU membership gives them—indeed, they will, for the most part, be repealable by statutory instrument.
On the whole in this House, we would not think it appropriate to do that with our own primary legislation, and this legislation is undoubtedly important enough to have primary status. That is because clauses 2 to 4 on retaining most EU-derived law are worded in such a way as to turn it principally into secondary legislation in United Kingdom law.
Mr Rees-Mogg
There seems to be an inconsistency in what my right hon. and learned Friend is saying. He has been happy for law to come into this country and become our senior law having been approved by a qualified majority vote in which the British Government may have voted against, but he would object to its being repealed through a statutory instrument subject to a parliamentary process in this House and the other place.
Mr Grieve
I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law—five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.
Mr Kenneth Clarke (Rushcliffe) (Con)
My right hon. and learned Friend concedes that two wrongs do not make a right. May I point out to him that the introduction of qualified majority voting was an achievement of the Thatcher Government? We persuaded the European Union to adopt the single market because we did not want small countries to be subjected to little pressure groups holding up very important standards that we needed to achieve in the new market we were creating. Mrs Thatcher sent as her commissioner Arthur Cockfield, who presided over several thousand of those being introduced so that the single market could get under way.
Mr Grieve
My right hon. and learned Friend is entirely correct. If I may explain, I was simply attempting—although I sometimes find it quite difficult—to put myself into the position of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who had explained his distaste. Having done so, I was trying to explain why he should still be concerned. I could not agree more with my right hon. and learned Friend. I am not troubled by the way in which this law has come into our country. We have kept our sovereignty. We made a choice to do this, and we did so because of an awareness of how, as international relations develop, it was in our national interest. That may represent a philosophical difference, but as I pointed out, there is all sorts of international law out there that binds us that did not originate in this Chamber.
We should be concerned about the fact that these laws matter. I do not know whether they matter to my hon. Friend the Member for Stone or other hon. Members, but if we go out into the street and ask people whether equality law—
Rachel Maclean (Redditch) (Con)
I accept that my right hon. and learned Friend has considerably greater knowledge of these matters than I do, so I wish to ask him about a more general point. I take on board his detailed points about how law is made in this place. However, does he accept that we have very good laws that were made outside the EU—for example, the health and safety legislation that was made domestically in our Parliament? With regard to Labour Members saying that we are not concerned with workers’ rights—
The Second Deputy Chairman
Order. Interventions should be short, not mini-speeches.
Rachel Maclean
Does my right hon. and learned Friend agree with me on that point?
Mr Grieve
I do. I entirely accept that it is within the wit and ability of this House in future to replicate, if we so desire, many areas of law that currently come from the EU, but at the moment we do not have time to do that. We are taking in law that really matters to people out in the street. I suspect that the vast majority will have no idea where this law originates from; they will just say, “Actually, my employment rights are rather important.”
Mr Grieve
No, I will carry on for the moment and then give way.
People will value that law, and yet we are bringing it in and giving it a status that I regard as very unsatisfactory. There are a number of ways in which that could be addressed, including new clause 2, which has been tabled by the Opposition. I have tabled new clause 55, which I will briefly explain. It looks at the nature of retained EU law, establishes a general presumption that retained EU law may be amended only by primary legislation or subordinate legislation made under the Bill that we are enacting, and provides a framework for the Government to stipulate specific provisions of retained EU law that are merely technical, and therefore appropriate to be amended by subordinate legislation. I do not have any objection to that happening, but the rest would have to be dealt with by primary legislation. The new clause would provide much greater legal certainty about powers for future amendment of retained EU laws, and it would give the Government flexibility to amend technical provisions quite freely.
Mr William Wragg (Hazel Grove) (Con)
Given the concerns in the House, will my right hon. and learned Friend tell us which party introduced such legislation in the 19th century?
Mr Grieve
Yes, indeed: the Conservative party did precisely that. There is a proud record in the Conservative party—as, indeed, there is in the Opposition—of contribution to that process. I make it quite clear that I do not put the smallest imputation that those on the Treasury Bench, or on any of my colleagues in government, want to reduce those protections one bit.
Sir William Cash
I want to put on the record that I have a lot of sympathy with the idea of an enhanced sifting scrutiny process, as my right hon. and learned Friend knows. I am glad to note that he puts an emphasis, which I am sure we all agree with, on primary legislation. The only question that I want to raise with him about his earlier remarks concerns his enthusiasm for the manner in which the legislation was made in the first place. I make the point yet again that it was done, to an extraordinary extent, behind closed doors and by a process of consensus that cannot possibly be justified.
Mr Grieve
I understand where my hon. Friend comes from, in view of his long-held concerns about these issues. But I ask him to consider the fact that one consequence of our EU membership—I have to accept this—is that in some areas in which law might have developed domestically, it has not done so in the 45 years of our membership, because we did it in common with our European partners. That is just an historical fact. Because it is an historical fact, we have to grapple with how we make sure that we do not throw the baby out with the bathwater.
Frank Field (Birkenhead) (Lab)
Does the right hon. and learned Gentleman feel, as I do, that from the Back Benches on both sides of the Committee is emerging an agreement, to which we wish the Government to respond? New clauses 50 and 51, tabled in my name and those of hon. Friends, are designed to make us look, first of all, not at laws from all over the world—we are, after all, debating the EU (Withdrawal) Bill—but at law from the EU. The new clauses would ensure that we put all EU law and regulations on to our statute book and allowed the House of Commons—we are not talking about a Henry VIII clause—to decide how we should review it.
My only slight worry with the new clause that the right hon. and learned Gentleman has tabled is that it will tie the hands of a future Government, as he accused me of doing yesterday. It might be that, on reflection, there are better ways of reviewing EU law than involving the whole House in primary legislation.
Mr Grieve
I read the right hon. Gentleman’s new clauses, and I can understand where he is coming from. If one looks at the totality of the amendments and new clauses in today’s debate, one sees that they are all trying to do, roughly speaking, much the same thing. The question is not the exact route that is adopted, but how the Government respond to that challenge. I do not want to take up more of the House’s time, but—
Sir Oliver Letwin (West Dorset) (Con)
In case my right hon. and learned Friend is coming to a conclusion, I want to ask him this question. I think we all hope that the Government will propose some mechanism for sifting, but does he intend to make a binary distinction between delegated legislation, which could mean exclusively negative resolution, and primary legislation? Alternatively, is he willing to accept, as I think I would be, the possibility of a sift that involves allocating some tasks to the affirmative resolution procedure, and only some others to primary legislation?
Mr Grieve
I understand my right hon. Friend’s point, but I wonder whether we are in danger of straying into another topic. There is an issue about the operation of the mechanism for implementing the changes and taking us out of the EU. I keep confidently hoping that the Government will be able to respond positively to that by having an adequate sifting mechanism for Parliament. Even when that has taken place, the changes envisaged for EU law are, as far as I can see, of a semi-permanent or permanent character. They are about the nature and quality of the law that we have decided to bring in, rather than the manner in which we have decided to do so. New clause 55 is very similar to new clause 25, tabled by the hon. Member for Bristol East (Kerry McCarthy), and they seek to look at the matter in slightly different ways. The question is how the Government will respond.
That raises, perhaps, a more fundamental issue about the process of debate in this House, on which I hope the Government will be able to provide some reassurance this afternoon. I do not know how other hon. Members found it, but I found yesterday hugely instructive, not because it led to some votes—it did so, but let us leave the votes out of it—but precisely because it gave us the opportunity to have a cogent and sensible debate about problems on which, as we proceeded, we began to perceive that there might indeed be a degree of consensus. The problem is that we always run up against the sense that if the Government come to the Dispatch Box and say, “This is very interesting, and we will think about it,” but we do not do something about it then and there, we may lose our opportunity ever to do something about it. We will, of course, have the opportunity of Report stage, should the Bill have one.
Vicky Ford (Chelmsford) (Con)
I want to pick up my right hon. and learned Friend’s point about consensus. As I understand it, new clause 55 is designed to send a clear message that the Government do not intend to lower standards for the environment, financial services or consumers without an open and transparent process. I have heard Ministers say from the Front Bench again and again that they do not intend to lower those important standards. Does he agree that that is an important message to give to our future trading partners in Europe?
Geraint Davies (Swansea West) (Lab/Co-op)
Will the right hon. and learned Gentleman give way?
Geraint Davies
On that point, can the right hon. and learned Gentleman envisage a point in the future—it could be a very short time away—when tariffs are imposed and economic circumstances are such that businesses demand reductions in cost? Businesses will turn to the four weeks’ paid holiday, the 48 hours directive or anything else that will cut their costs, and the Government will be tempted to abolish those rights.
Mr Grieve
I do not think I am quite as apocalyptic as the hon. Gentleman, because I happen to think that, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said in his speech yesterday, the idea that the UK suddenly wishes to translate itself into a country of no regulation and no protection at all is fanciful. I have never seen the smallest sign of that from any section of the public. Indeed, one of the things that brings us together as a nation is agreeing that quality of life matters while, at the same time, wishing to develop a cohesive society.
Frank Field
Is it not true that the clearer the message we send out from the debate on this Bill that we are adopting the whole corpus of laws and regulations, the easier it will be to do a trade deal because we will be competing on the same terms?
Mr Grieve
The right hon. Gentleman makes an important and interesting point, to which I have no doubt the Government will respond. As I have said, however, I do not wish to be prescriptive. I want an assurance from the Government that this matter is being looked at, and that it cannot really be divorced from some of the things we will look at next week, or whenever the Committee sits again.
My desire is that we should have such debates. I do not wish to force the Government’s hand, even though that may appear superficially attractive. I do not actually wish to put new clause 55 to the vote; it has problems of its own. However, I put the Government on notice that we are going to have to draw together the issues we are debating today, and I am convinced that we will debate similar issues next week.
All those issues derive from the same problem about the way in which the Government have approached and have at the moment drafted the legislation, and that problem must be remedied. It can be remedied, and I am happy to work with the Government to try to ensure that it is remedied. If necessary, we can come back to this on Report—on the assurance that we will have a real opportunity to do so on Report—and then pull the strands together and produce a package that will command some consensus across the House. I very much hope to hear that from the Government this afternoon, if I am not to be tempted to put my new clause to the vote.
Peter Grant (Glenrothes) (SNP)
I rise to speak to amendments 200 to 201 in my name and those of my right hon. and hon. Friends, and to new clause 45, which will be decided on at a later date. I also want to support amendment 217, tabled by our colleagues in Plaid Cymru.
Last week, with several members of the Brexit Select Committee, some of whom have already spoken about this, I went on a very informative visit to Brussels and Paris. It was very informative partly because the people we spoke to were so well informed and so forthcoming. They appeared to be a lot better informed and more forthcoming about what Brexit is really going to mean than a great many Conservative Members and, indeed, than some Conservative Front Benchers.
In about 20 hours of meetings, the shortest and most perceptive comment we heard—this sums up where we now are with Brexit—came from a member of the European Affairs Committee of the French Senate. He quite simply said, “Quelle pagaille!”—“What a mess!” I replied that if he thought it looked like a mess from the French side of the channel, he should try looking at it from the United Kingdom’s point of view.
We have a Government who rushed into a referendum too soon, at a time when the UK population was the least well-informed in the whole of Europe of what Europe is actually about. Article 50 was triggered in indecent haste—far sooner than it needed to be—simply to pacify some of the more rabid Brexiteers on the Government Benches.
Mrs Anne Main (St Albans) (Con)
I was delighted to hear that we may have a consensual approach. May I gently chide the hon. Gentleman, because the public are rather fed up with being told that they are too stupid to know what they are doing, which is rather what he is saying?
Peter Grant
I can only refer the hon. Lady to surveys carried out immediately before the referendum. Citizens in every country in the European Union were asked a number of questions on what they thought the EU was about, and it is a matter of fact that UK citizens were less well-informed about the EU—not because they are stupid, but because this Parliament and the free press in this country have failed to keep them adequately informed. For example, Government MPs referred to the Syrian refugee crisis during debates on the European Union Referendum Bill, but the Syrian refugee crisis had nothing to do with our EU membership. In fact, it had everything to do with our membership of the human race—and as far as I am aware, there have not yet been any proposals for us to leave that.
Peter Grant
Yes, it did. A 600-page White Paper was also produced a year or so before the referendum, which allowed everyone taking part to be a lot better informed than even the same Scots voters were about the EU referendum.
It is also worth reminding ourselves that after what has been described as a disastrous and divisive referendum, the first thing that happened in Scotland was that campaigners from all sides got together in local churches, held services of reconciliation and committed ourselves to working together to make the result work, even if it was not the result that we wanted. In the immediate aftermath of the EU referendum, there was a massive increase in crimes of racial hatred against citizens in this country and elsewhere. That was not the fault of those who voted to leave, but a consequence of how the referendum had been set out and how, for too many people, the campaign was conducted.
John Redwood (Wokingham) (Con)
I do not share the hon. Gentleman’s view that we leave voters did not know what we were doing. I found that people were very intelligently engaged and understood it. Why does he think the remain campaign and the EU institutions were unable to get people up to the level that he thought they ought to be?
Peter Grant
Possibly because some people believed what was written on the side of a bus about £350 million coming to the NHS. I have heard the claims that that did not make a difference, but if that is the case why did the leave campaign pay for it and why was it so keen to promote it?
The referendum has been held, and I have to accept that two parts of the United Kingdom have voted to leave the European Union. I do not have any right to stand in their way, but I say again that this Parliament will not be allowed to ignore the fact that two parts of the United Kingdom voted to stay. When 62% of the people in my country have said, “We want to remain in the European Union,” it is our constitutional and democratic responsibility to make sure that we honour that instruction in the best way possible. One way to do that, if it is impossible to avoid Scotland being torn out of the European Union against our will, is to retain as much as possible of the benefits that our people get from EU membership, and that is what I want to address by speaking to our new clause 45, which will be decided at a later date, and Plaid Cymru’s amendment 217.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
My hon. Friend was indeed correct to say that hate crime rose after the Brexit referendum, but for the sake of accuracy it is worth reminding ourselves that, while it rose in the UK on aggregate, it actually fell in Scotland.
Peter Grant
It is certainly correct to say that reported hate crime fell. I was made aware of a couple of cases in my own constituency of hate crimes not being reported to the police, for reasons that I did not understand but had to accept on the part of the victims. We have to be careful because, rather than there being a reduction in hate crime, perhaps it is being under-reported, but my hon. Friend makes a good point.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
This has already been raised in the Chamber, but does the hon. Gentleman agree that today’s story in the papers about whatever the Russians did that may have skewed the Brexit referendum result is a very worrying issue?
Peter Grant
It would certainly be worrying if any major power was able to use dirty tricks to influence the result of a democratic process in any country. It may be worth remembering that it is not that long ago that David Cameron pleaded with Vladimir Putin to interfere in another referendum to ensure that he got the result he wanted. It is important that, if we are going to criticise and call out foreign interference on behalf of our opponents, we should also be prepared to call out foreign interference in our favour.
It is important for the people I represent and the nation that has sent me to this Parliament to be one of its representatives that we seek to retain as much as possible of the benefit of European Union membership, even after we have been forced to temporarily leave it, so we should seek to reverse the Government’s unilateral decision on membership of the single market and the customs union. Plaid Cymru’s short amendment would help to do that by ensuring that, even after leaving the EU, the Government have no authority to leave the European economic area without a further vote of this Parliament.
The first benefit of that would be that the 4 million would be able to relax, if the UK Government say today, “We got it wrong. We’re staying in the European economic area and in the single market.” All the worries about settled status and all the paperwork that people have to go through just to guarantee the rights that they already have would stop, as would all the concerns about how we square the circle of borders or no borders at different stages between the UK, Northern Ireland and the Republic of Ireland if Northern Ireland and the rest of the United Kingdom remain in the single market and the EEA.
Sir Oliver Letwin
Can the hon. Gentleman explain what on earth he is talking about has got to do with the two clauses under discussion?
Peter Grant
I am speaking to amendments on the amendment paper, if the right hon. Gentleman would care to look at them.
I have no great expectation that the Government will accept either Plaid Cymru’s amendment or the SNP’s proposed new clause, which will be decided at a later date, but I want to continue to remind them and their Back Benchers, as well as Opposition Back Benchers, that we do not have a final, irreversible decision on the single market. We might not even have an irreversible decision on the European Union, but we certainly do not yet have an irreversible decision on the single market and membership of the European economic area.
There is a way in which the Government can extricate themselves from the mess that they have created for us; end the torment of 4.5 million people who still do not have an absolute legal guarantee that their children will be allowed to finish at the school at which they have already started; ease the daily growing concerns of businesses the length and breadth of these islands that do not know whether they will be allowed to import raw materials or export finished goods; and ease the concerns of our public services that their essential workers, including care workers, nurses and doctors, may not be able to continue to move here to serve our people. It is all right for the bankers, of course, because there will be an exception for them. They will have free movement, but nurses, doctors and care assistants are apparently not important enough.
Even if, for political reasons, the Government cannot ask their Back Benchers to support amendments either today or during later Committee sittings, I ask them to think very carefully about what I am saying. There has not been a referendum to leave the single market, so the situation can be changed by the will of this Parliament and the support of the Government. They do not have to go back on their promise to respect the result of the referendum to leave the European Union, but they can reverse the headlong charge towards the cliff edge and make sure that the Bill actually delivers what it is supposed to deliver, and that means we have a soft landing instead of falling off the cliff edge in March 2019.
The Solicitor General (Robert Buckland)
I rise to speak in support of clauses 2 and 3. It is a pleasure to participate at Committee stage, which is one of my favourite stages of debate because it is a time when we can all can come together in a mature way to look at the detail of the Bill and debate it as grown-ups. May I say to my right hon. and hon. Friends on the Government Benches, and indeed to all hon. Members, that I certainly intend to take very seriously the points that have already been made, and those that will be made today, in future Committees days, and—I assure my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) of this—on Report?
Michael Tomlinson
I thank my hon. and learned Friend for giving way so early in his remarks. Will he also reflect on: the Health and Morals of Apprentices Act 1802; the Factory and Workshop Act 1878, which was brought in by Disraeli; the 1901 Act brought in by Salisbury; and, if we wind forward to the former Prime Minister, David Cameron, rights, such as maternity and paternity rights, that far exceeded the EU’s minimum guarantees?
The Solicitor General
My hon. Friend’s point is well made. We are talking about centuries of progress. To bring things right up to date, the Prime Minister made a pledge in her Lancaster House speech, which was underlined in our manifesto—I can underline this again today on behalf of the Government—that the Brexit process will in no way whatever be used to undermine or curtail the rights of workers that are enshrined both in domestic law and in law by virtue of the European Union.
Frank Field
When the right hon. and learned Member for Beaconsfield (Mr Grieve) allowed me to intervene, I asked whether a consensus was emerging. New clause 50 states that all European laws and regulations would be brought on to our statute book by European exit time, but is the Minister saying that that will actually occur and that such an amendment is unnecessary? If that is the case, some of us will not have to move our amendments.
The Solicitor General
In a nutshell, I would say that the right hon. Gentleman’s amendment and those associated with it are indeed unnecessary. I will set that out in more detail when I come on to address his point and those made by the hon. Member for Greenwich and Woolwich (Matthew Pennycook), who spoke to the amendments very helpfully, if I may say so with respect.
Stephen Doughty
The hon. and learned Gentleman knows that I respect him. If we take him and what he is saying at face value, I do not think he has a lot to fear from new clause 55, new clause 25 or the other measures being proposed as they would simply secure what he is saying. However, does he understand why many of us have suspicions when we hear speeches about a low-regulation economy from Members such as the hon. Member for North East Somerset (Mr Rees-Mogg) that are then retweeted by the Department for International Trade? That is where these deep worries are coming from.
The Solicitor General
I absolutely understand the concerns of hon. Members on both sides of the Committee. The Government’s policy is clear, and I shall address in further detail where the Government stand on those amendments.
The Solicitor General
May I make some progress at this stage? I will certainly invite the right hon. Gentleman to intervene later, but I want to develop my arguments on the clauses.
Clause 2 preserves the domestic law we have made to implement our EU obligations. More specifically, the clause will preserve any domestic regulations made under section 2(2) of, or paragraph 1A of schedule 2 to, the European Communities Act 1972. Without clause 2, such legislation would lapse at the same time as the repeal of the 1972 Act, meaning that there would be substantial holes in our statute book on the day we leave the EU. The clause is therefore essential to preserve our statute book and provide certainty over what our law is. I think that all Members would agree that at the heart of the rule of law is the need for certainty. That was why the Prime Minister put that at the top of her list when she outlined her criteria in the Lancaster House speech, and it was why I campaigned very strongly on that when standing for re-election.
Lady Hermon
I am listening to the Minister very patiently. He, like other Members who have looked closely at the Bill, will know that clauses 2 and 3 both conclude with a key phrase:
“This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”
We cannot possibly consider clauses 2 and 3 without looking at schedule 1, which removes overnight the general principles of EU law such as non-discrimination, proportionality and respect for fundamental rights.
Lady Hermon
The Minister may shake his head and he may not agree, but that is in the Bill he is advancing in this Chamber.
The Solicitor General
With respect to the hon. Lady, I do not agree with her analysis. We will carry out more detailed scrutiny of clause 5 and schedule 1 at a later stage, but I reassure her that clauses 2 and 3 will create certainty which, as I have said, is vital.
We drafted clause 2 in a deliberate way. We have drawn it more widely than to cover just domestic legislation created under the 1972 Act as it will also apply to any other domestic primary or secondary legislation that implements EU obligations. It will apply to any related domestic legislation, any domestic legislation relating to law that will be retained under clauses 3 and 4, and indeed any domestic legislation that is otherwise related to the EU or the European economic area. That ensures that all that legislation will form a part of what we define as retained EU law.
We have done that for two reasons. First, it means that this legislation, where relevant, will be interpreted in the light of pre-exit case law—the case law of the Court of Justice of the European Union—and the general principles of EU law, which are provided for in clause 6. That is vital to ensure not only that we save the legislation, but that we provide for it to operate in precisely the same way as it did before, which will prevent legal uncertainty about how such provisions should be interpreted.
Secondly, our approach ensures that to the extent that deficiencies might arise in any legislation as a result of exit, they can be corrected under powers in the Bill. Saving the domestic legislation under this clause will therefore reduce the risk of uncertainty and increase continuity as to the law that applies in the UK. It will also mean that we avoid the famous cliff edge that many hon. Members are worried about when we leave the EU.
Sir Oliver Letwin
I do not want to pursue further the questions about clause 6—we will talk about them anon, and we talked about them yesterday—but while very many of us have no objection to anything my hon. and learned Friend says about the way in which existing law will be incorporated under clauses 2 and 3, does he accept that the issues raised by Members on both sides of the Committee are about the mechanisms by which the Bill seeks to achieve what he describes as correcting deficiencies, but could also be used to do much more than that? Does he therefore accept that the only thing we are currently debating is the mechanism to ensure that more than correcting deficiencies is not done by the technical means of statutory instruments under the negative procedure?
The Solicitor General
That is the nub of it. I hope that I can reassure right hon. and hon. Members that the Government’s policy is very clear and delineated, and that this is not some out-of-control power grab involving the use of the Bill—this is a framework and process Bill—as a basis to change policy. That is not the intention of the Bill.
Frank Field
The Minister has persuaded me that I do not need to speak to or move new clause 51, which relates to the point raised by the right hon. Member for West Dorset (Sir Oliver Letwin). Given the general wish in the country to take power back, new clause 51 would provide a place where power is supposed to come back to—the actual authorities—and set the means by which we review what we want to keep, extend, amend and kick out. Will the Government allow us to decide the mechanisms by which we undertake that review?
The Solicitor General
I take issue with the mechanism in new clause 51, which would be rather burdensome and could increase uncertainty, which would not be good for businesses or citizens, but I will take the spirit in which the right hon. Gentleman tabled it very much to heart and mind when considering how to develop the ongoing dialogue about the means by which this place can sort the wheat from the chaff, if I may use that phrase.
Frank Field
I hope that this will be my last intervention. The purpose of the measure is to make sure that we all know that the task will be massive. I thought the idea preposterous that most of us would be prepared to give up all our other interests to participate in that mega review, which the right hon. and learned Member for Beaconsfield said might go on for 20 years, and I thought we could hand back quite a bit of it to the Government, providing we could keep hold of the reins.
The Solicitor General
The right hon. Gentleman is right to call this task mega. I remind the House that, according to the EU’s legal database, more than 12,000 EU regulations are currently in force here. As for UK domestic legislation, the House of Commons Library indicates that there have been around 7,900 statutory instruments implementing EU legislation. This is indeed a mega task—to coin his phrase.
Geraint Davies
I accept that there is no intention that the Bill takes away the rights and protections enshrined in EU law and that the Bill does not imply that they will be taken away. The problem is that the Bill enables future Governments to do so, and there is therefore a need to protect those fundamental rights and protections by providing that they can be amended only through primary legislation. They need to be separated from the great mass of technical stuff that can be sifted by the European Scrutiny Committee or other such turbo-charged Select Committees, which could look at the minutiae.
The Solicitor General
The hon. Gentleman has been a committed pro-European throughout his career. I enjoyed his YouTube videos during the campaign—[Interruption.] I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. [Interruption.] He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.
Mr Kenneth Clarke
My hon. and learned Friend accepts that the problem is that the Bill includes powers that could be used to make drastic reductions in environmental standards and other things without any proper parliamentary process. There is a widespread consensus among remainers and leavers that we do not want the powers to be used in that way. He sounds as though he is about to reassure us that the policy of the present Government is that although they are taking the powers, they have no intention of using them for such purposes. I have the highest regard for him—he is a personal friend—and I quite accept that a Government led by this Prime Minister is not about to use draconian powers to lower standards, as her instincts are quite the other way. Given that the powers are therefore not needed—we do not need a Bill to give us powers that no one wants to use—why can we not amend the Bill to put it beyond doubt that no such attempt will be made? Heaven forfend that my party should swing to the right at any time in its long and distinguished history, but there are members of the present Government who are not excessively fond of lizards and bats, or workers’ rights. We would all be reassured if he undertook to put in the Bill a reduced level of powers.
The Solicitor General
My right hon. and learned Friend knows that I hold him in the utmost respect—reverence even—but, having discussed the mega task that faces us with the right hon. Member for Birkenhead (Frank Field), I think he will agree that it is probably safer and wiser for the Government, with a belt-and-braces approach, to make sure that we do not have any slips between cup and lip, and that there are no lacunas or loopholes in the law that could actually endanger these protections and rights.
Liz Kendall (Leicester West) (Lab)
I share the concerns of the right hon. and learned Member for Rushcliffe (Mr Clarke). If the Government will not use the powers, why are they giving them to themselves? The Minister talks about dialogue and reassurance, but I have not heard anything practical from him about how he will change the Bill to address these concerns. What is he going to do?
The Solicitor General
I will come to that, but first I want to deal with the amendments tabled by the hon. Lady’s colleagues.
The Solicitor General
I need to press on, because other Members want to speak and I am mindful that you, Dame Rosie, want as many as possible to have the opportunity to do so.
The Solicitor General
I am sorry. I need to press on.
Clause 3 converts the text of direct EU legislation, as it operates at the moment immediately before we leave the EU, into our domestic law. Such existing EU law is currently given legal effect in our law via section 2(1) of the 1972 Act. Without clause 3, those laws would no longer have effect in domestic law when we leave and repeal the 1972 Act. Again, that would leave holes within our domestic law. More specifically, the clause converts EU regulations, as well as certain decisions and tertiary legislation, into domestic law. It also converts adaptations to instruments made for the EEA. The clause is necessary to ensure that we fully keep existing EU laws in force within the UK.
In general, these instruments, or parts of them, will be converted only if they are already in force before exit day, meaning that an EU regulation set to come into force six months after we leave will not be converted into UK law. However, some EU instruments will be in force but will apply only in a staggered way over time, with different parts applying at different times. In those circumstances, only those parts that are stated to apply before exit day will be converted.
Robert Neill (Bromley and Chislehurst) (Con)
I might be anticipating the Minister’s later remarks, but does that not leave us with a possible loophole when we have participated in the preparation of measures that have not yet come into force and we might regard as thoroughly desirable, but we cannot by any means bring them into force?
The Solicitor General
I will deal briefly with my hon. Friend’s amendment 356. As I was saying, we have some examples here, such as the EU’s fluorinated greenhouse gases regulations, which are stated as applying from 1 January 2015. They include prohibitions on placing certain substances on the market from specific dates, several of which fall after exit day. With respect, however, his amendment could create further confusion, because there needs to be one standard cut-off point at which the snapshot of law is taken, and that is why exit day should apply. When it comes to measures affected by the cut-off point, we will do whatever is necessary before exit day to provide certainty for business, including by bringing forward further legislation, if required, to cater for those particular situations. If I may return to develop—
The Solicitor General
I will certainly take more interventions, but I am mindful of the time.
May I deal with clause 3? The clause converts only the English language version of the instrument. Other language versions will remain available, as they do now, for interpretive purposes. Finally, as hon. Members would expect, the EU instruments that have never applied in the UK will not be converted under the clause. That includes instruments in respect of the euro and measures in the area of freedom, security and justice in which this country did not choose to participate. Those exempt instruments are described in schedule 6.
Margaret Greenwood
The Government have said that they will guarantee existing employment rights derived from the EU, but the EU is also looking at proposals to extend those rights by, for example, requiring employers to give workers on zero-hours contracts a written statement of their pay rates and expected hours of work. Will the Government champion employment protection and require employers to give workers on zero-hours contracts a written statement of their terms and conditions?
The Solicitor General
The Government, through the Taylor review, have been committed to looking at all aspects related to zero-hours contracts, and this, post-exit day, will be a matter for the House and this Parliament to determine. It may well be that this or a future Government make changes of the sort that the hon. Lady and others are looking for. The fact that we are leaving the EU in no measure whatever rules out the potential for those changes to be made.
May I deal with—
The Solicitor General
I am sorry, but I need to make progress. I want to deal with the proposals tabled by hon. Members, including the Opposition spokesman.
I will say a little about how we will deal with converted law, which was raised by my right hon. and learned Friend the Member for Beaconsfield. Converted law will become domestic legislation. It will not automatically have the status of either primary or secondary legislation. Indeed, as has already been referenced, paragraph 19 of schedule 8 sets this out:
“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”.
We all know—including the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State—about the consequences in terms of incompatibility, the power of the courts and what the House can do to rectify legislation. I think that is an enhancement. It is a welcome initiative and I know the right hon. and learned Gentleman shares my view about that.
Where there are existing pre-exit powers to make subordinate legislation, which is capable of amending retained direct EU legislation such as converted regulations, the converted legislation is to be treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers. In other words, we might bring something down to this place and transpose it. We used to use the term “gold plating”, but it has somewhat gone out of fashion now, and I think the Government improved their processes over the years. However, there have been powers to vary, and, in effect, that will be treated as secondary legislation—no change, really, because the House already had those powers with regard to scrutiny.
It follows, then, that where there are not pre-exit powers to make subordinate legislation, we will look case by case at the converted law and determine how it is to be treated. This is the point that has been made by my right hon. and learned Friend the Member for Beaconsfield and others: how are we to determine what is what? As I have said, I am keen to ensure that all concerns are properly listened to, and that when we come to further amendments on further days, the Government give full consideration to how to create that mechanism and in what form the House, and indeed the other place, would like it to be administered.
Sir Oliver Letwin
My hon. and learned Friend may be saying what I had hoped he was going to say. May I ask him to be a little more specific? Does he mean that, in due course and in their own time, the Government will come forward with—if I might put it this way—a triage amendment that settles a process for distinguishing between technical deficiency amendments and substantive amendments, and the way in which either is treated?
The Solicitor General
We are going to continue the dialogue, listening extremely carefully. Indeed, there might be a form of words that we can agree on that satisfies this place. Let us not forget that primary legislation is not the only way we can create this mechanism. There are Standing Order provisions of the House that the House jealously protects and preserves, and the Government are mindful of the need not to trespass on the exclusive cognisance of the House.
The Solicitor General
I think I must give way to the hon. Member for North Down (Lady Hermon), who has been waiting for me to allow her to intervene.
Lady Hermon
I am extremely grateful to the Minister, because I took him at his word. In his opening remarks, he said how much he welcomed consideration in Committee of any Bill because it allowed us to debate in an adult fashion, so I am grateful to him for, at long last, giving way.
May I seek clarification, without the Minister referring to his very complicated notes? People need to understand what is happening, and I would like him to explain, before anyone withdraws or decides not to press their proposal, how directly effective provisions of EU law will be safeguarded. These are rights that arise through EU jurisprudence, not from a directive or a regulation. I want guarantees from him that directly effective provisions are protected beyond the Bill.
The Solicitor General
One reason the hon. Lady has not heard me outline that concern in detail is that clause 4 is the sweeper clause and my hon. Friend the Minister of State, Ministry of Justice, will deal with that in the second part of the debate. I assure her that, by the end of today’s proceedings, her concerns will, I hope, have been addressed during the debate on clause 4.
I want to deal with the amendments, having, I hope, made—
The Solicitor General
May I make progress? I would be grateful, as I need to make progress on the amendments. I think I have been more than generous in giving way. I will move on to try to ensure that I deal with all the points that have been raised.
May I deal first with health and safety legislation? There has been a lot of proper debate about that. The way existing powers are used—the way the UK meets its obligations to implement EU law—is most typically through regulations that are made under the 1972 Act, but regulations are also made under a range of other Acts for these purposes, sometimes in conjunction with the 1972 Act powers and sometimes not. For example, some health and safety regulations are made using the Health and Safety at Work etc. Act 1974 and the 1972 Act where the 1974 Act alone cannot provide the vires, or powers, for those regulations.
One example is the Control of Major Accident Hazards Regulations 2015. They are made for the purposes of health and safety and of environmental protection, the latter being outside the vires of the 1974 Act. Those regulations prevent and mitigate the effects of major accidents involving dangerous substances, which can cause serious damage and harm to the public and to the environment. The parts of the regulations made under the 1974 Act can continue to be updated after exit under existing powers conferred by that legislation.
As I have set out, clause 2 rightly takes a maximalist approach to preserving direct legislation. It sets it out that any domestic legislation that implements EU obligations or is otherwise related to the EU or the EEA will continue to have effect after our exit. The effect is that those regulations will therefore become retained EU law within the meaning given in the Bill. So it is absolutely right that after we have left the European Union, domestic powers granted by Parliament in other Acts can operate on what will become retained EU law, and as such will be our domestic law. This is so that appropriate changes can be made in future, in line with any domestic policy, where they are within the scope of those powers and the will of this place.
In contrast, the amendments would fetter powers across the statute book that Parliament has already delegated. Relying only on powers set out in this Bill to amend retained EU law would be insufficient and would defeat the purpose of what Parliament has previously set up in the 1974 Act, for example, and other Acts. As I have set out, these powers are in many cases very important and help to deliver functioning regimes. Each of them also contains its own limitations. Those limitations were agreed by Parliament when it agreed to create the powers in question.
Mr Pat McFadden (Wolverhampton South East) (Lab)
The Minister has talked quite a lot about the purpose of this exercise being to provide continuity and certainty, but is it not the case that that will be true only on day one? He cannot guarantee any continuity or certainty on day 100 or day 1,000, but is not that, for many of his colleagues, the whole point of leaving the European Union?
The Solicitor General
The right hon. Gentleman is old enough and wise enough to know that, while this exercise of freezing the law in time on exit day has to be done, the law is a constantly evolving creature. None of us can stand here and bind the hands of our successors. What we can do, as men and women of good will seeking to achieve as sensible and smooth a Brexit as possible, is provide legal certainty. That is why I am here. That is why I have undertaken to try to deal with this task. That is why this Government are doing everything they can, within the time they have, to get this right.
Mr Grieve
I have been listening carefully to what my hon. and learned Friend has been saying. Again, there seems to be an overlap. There are issues about how Parliament conducts scrutiny, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) has mentioned. That is also covered in proposed new subsection (3) of my new clause 55. There is also the question about modifications to some areas of retained EU law taking place in any way other than by primary legislation, in the longer term. Keeping those two points in mind, may I invite him to go away and see, as the discussion continues, what the Government can come up with by way of a package involving those two elements that might commend itself to the House, bearing in mind the undertaking that he has given to look at this afresh on Report and for the Government to respond positively on Report to what has been said?
The Solicitor General
Yes, I am happy to do that. That is very much in the spirit what I have already said.
The Solicitor General
No, I would like to press on, if I may. I am mindful of the time, and I want to make sure that we get these points on record.
I want to deal with the points, which I hope hon. Members want to hear, about the Government’s commitment not only to workers’ rights but to consumer protection rights and environmental obligations—all of which have been very much a part of the work that we have done with our European partners during our 43 years of membership of the European Union. That does not change. I want to move on to some of the other amendments—
Mr Kenneth Clarke
I thank my hon. and learned Friend for giving way. This is quite an important issue. A moment ago, I thought that he was on the brink of saying that he would try to come back to the House on Report with the Government’s own legislative proposals to give effect to the good intentions that he has assured us the Government entirely share, but at the last moment he hesitated. When he said yes, was he committing the Government to putting in the legislation the best solution in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in particular, so that we could all be assured that the Bill will leave this House in a way that we entirely unanimously accept?
The Solicitor General
I am committed to trying to achieve the best solution, whether it is in the Bill or in an amendment to Standing Orders. I will not presume to tie the hands of this place. I hope that my right hon. and learned Friend can take that as a clear assurance that I will do whatever I can to get this right.
The first and most important point to be made about new clause 15, tabled by the hon. Member for Nottingham East (Mr Leslie)—it has, I think, already been made by several other Members—is that we have strong rights and protections here, domestically, which are not contingent on our future membership of the EU. We have a proud record, and in many areas our standards far exceed the minimum standards required by EU law—for instance, entitlement to annual leave and maternity allowances. When we leave the EU, it will be for this Parliament and, indeed, the devolved legislatures to determine the law and the rights that apply here in the United Kingdom.
I must say to the hon. Member for Nottingham East, with respect, that in my view the new clause would impose an onerous and unnecessary duty on the Government. There will be nothing to stop future Governments of whatever hue, or future Parliaments when exercising their sovereignty, from considering any legislation that the EU or the European Economic Area may make. They need not be obliged to do that; it will be a matter that they can take into consideration. A requirement to report to Parliament each and every time the EU amended its rules would be excessively onerous, given the number of reports that might be made and considered.
Moreover, we do not want to give the inappropriate impression that the path followed by our European partners will always be the path that we as a UK Parliament should follow. While I am entirely supportive of many measures that ensure that we work, converge and keep pace with our European partners, there will of course be plenty of opportunities for us to forge our own path. That, after all, is what the vote was all about.
Mims Davies (Eastleigh) (Con)
I thank my hon. and learned Friend for giving way. He is being very generous with his time, and he is making a very useful and, I think, positive speech explaining how the Bill will deal with people’s concerns about the cliff edge and limitations. Does he agree that it also gives us a chance to support the working statute book, ensuring that we look after our own environment, consumer rights, workers’ rights and LBGTI rights?
The Solicitor General
My hon. Friend is a passionate campaigner on many of those issues. I can reassure her and her constituents that that is precisely what we seek to do.
I hope that I have dealt with the new clauses tabled by the right hon. Member for Birkenhead—
Frank Field
I accept what the Solicitor General said about new clause 50, and I think we should thank him for what he said and what he will try to achieve. New clause 51 is about setting up mechanisms whereby the House could determine how the corpus of legislation and regulation brought into UK law could be reviewed. Will the Solicitor General say a word about that before I go to the Chair and say that I am satisfied in this instance as well?
The Solicitor General
I hoped that I had responded to new clause 51 in an earlier intervention. It is well intentioned, but the mechanism is too burdensome. It would impose an annual obligation to produce reports which I think would pile Pelion on Ossa, given the amount of work that we have to do in the House anyway because of the unusual circumstances that we face.
Frank Field
I do not think that the House has the appetite to undertake the review, given the ginormous amount of legislation that is coming over to us. I tried to get the Library to describe what would happen. Would this whole place be full of pieces of paper—full of legislation and regulations? How the hell are we, as individuals or groups, going to deal with that?
There is another crucial point. Given what was said by the right hon. and learned Member for Rushcliffe (Mr Clarke), might there be discussions before Report about the form in which the Government might bring back the sentiment involved in what the Solicitor General is saying, and what we are all saying, so that we might vote on that?
The Solicitor General
Yes, indeed.
I shall now move on to new clauses 9, 22, 23 and 29, which is linked to amendment 128, new clause 45 and amendment 217, which is linked to amendment 64. They all in various ways deal with the question of the EEA. As we have said on several occasions, this is not about the UK pursuing an off the shelf arrangement; it is the UK seeking a bespoke arrangement that works for us. In the Florence speech of 22 September—which happens to be my birthday, although I am sure there was no coincidence in that—the Prime Minister set out a vision for the new economic partnership: a new partnership that will empower us to work together in continuing to bring shared prosperity for the generations to come.
Stephen Kinnock (Aberavon) (Lab)
I accept of course that we should have on the table the option of creating a bespoke deal for our future relationship, but surely we would want to have a range of options and models on the table as we shape that deep and comprehensive partnership? Why would we want to take one of those potential models off the table now, as it could be the building block of something different coming further down the line?
The Solicitor General
I always listen to what the hon. Gentleman says with a great deal of interest, but I say in the context of the Bill—although mindful of the constraints of Committee debate—that the thrust of these amendments will not achieve what their movers seek, which is to keep this country in the EEA. That is because all the amendments are based on a mistaken understanding of the UK’s relationship with the EEA. The UK is a party to the EEA agreement in its capacity as an EU member state, so once we leave the EU, the EEA arrangement will no longer be relevant. It does not have a practical effect at international level, and domestic legislation cannot change that.
John Redwood
Will the Minister confirm that one of the few things remain and leave agreed about in the campaign is that we would be leaving the customs union and the single market, and we would not be doing a Norway? [Interruption.] Both sides said that, and the British public understood it.
The Solicitor General
My right hon. Friend and I were on opposite sides of that debate—indeed, we have been on opposite sides of the debate on Europe for the 20 years and more that I have known him—but I never said in the many arguments I made up and down the country that this was a have your cake and eat it withdrawal: if we voted to leave, it would mean we left the institutions of the EU, which included the customs union and the single market. That is why I campaigned against it, but I accept, as every democrat I know does, the result of the referendum.
I shall now move on, as swiftly as I can, to deal with the effects of these amendments.
The Solicitor General
I would love to give way to the hon. Lady, but I am mindful of the time, and Mr Hoyle is looking at me in a very stentorian way, so I had better follow that instruction.
There are some potentially detrimental effects of the amendments that I know hon. Members would want to avoid. Amendment 217 seeks to remove the annexes to the EEA agreement from the scope of clause 3. The hon. Member for Arfon (Hywel Williams) is not in his place at present, but the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) is here to represent their party’s interests, and I say to him that that amendment would not allow us to remain in the EEA, for the reasons I have set out, and it would damage the clarity and certainty we aim to provide.
As many hon. Members already know, the EEA agreement effectively extends the single market to three non-EU countries: Norway, Iceland and Liechtenstein. Annexes to the agreement specify which single market rules apply to those countries, along with any necessary adaptations, in order to make the single market properly operate with respect to these countries. Clause 3(2)(b) and (c), which amendment 217 would remove, provide that EU instruments which apply to the EEA will also be converted into domestic law. Those provisions are necessary to ensure that we fully preserve the existing laws and rules that apply here before our exit. They are not, and are not in any way intended to be, a means by which the UK ceases to be a party to the EEA agreement. The retention or otherwise of such annexes within our domestic law will not change that basic fact. The effect of amendment 217 would only be to leave gaps in the law which, as I have set out, would clearly be undesirable.
Heidi Alexander
Will the Solicitor General confirm whether the powers outlined in part 2 of schedule 8 and in clause 8 would allow Ministers to issue an article 127 notification under the EEA agreement?
The Solicitor General
That is not necessary. The provisions in schedule 8 are all about the frameworks, not the policy, and this Bill is not a vehicle for policy. This is a framework Bill that allows the law to operate within it. That is the distinction that I seek to draw. While I understand and respect the reasons behind the amendments, they do not deliver the policy outcomes that the hon. Lady and others may want.
The Solicitor General
I will not give way any further.
It is our policy that we will not be a member of the EEA or the single market after we leave the EU, so introducing an obligation to produce a report on membership of the EEA, as new clauses 9 and 23 seek to do, is simply unnecessary.
I will now try to deal fairly with the Scottish National party amendments 200 and 201, which the hon. Member for Glenrothes (Peter Grant) spoke to. While we do not accept that the amendments are necessary, I welcome the chance to set out clearly the meaning of clause 2. Amendments 200 and 201 seek to provide clarity on precisely what is meant by “passed” in the context of the clause. Some have questioned the effect of clause 2 in relation to an Act that may have been passed by the Scottish Parliament, but which has not yet received Royal Assent when the clause is commenced.
We do not believe that there is an ambiguity. Clause 2(2) states that “EU-derived domestic legislation” is an enactment. As enactments can only mean something that has received Royal Assent, an Act of Scottish Parliament that has only been passed cannot fall within this definition, and it would therefore not be categorised as EU-derived domestic legislation for the purposes of the Bill. The reference to “passed” in clause 2 is therefore a reference to the purpose for which the enactment was passed, not the fact of whether it was passed. I hope I have been able to shed light on that area for the hon. Gentleman, and I invite him to withdraw the amendment.
Turning now to Plaid Cymru’s amendment 87, which is in the name of the hon. Member for Arfon, we do not accept the premise that lies behind the change. In trying to circumvent the provisions of clause 11, the amendment pays no heed to the common approaches that are established by EU law or to the crucial consideration that we—the UK Government and the devolved Administrations—must give to where they may or may not be needed in future. What is more, it undermines our aim to provide people with maximum certainty over the laws that will apply on exit day. The amendment would also be practically unable to achieve its underlying aim. The enactments that it takes out of retained EU law would also be taken outside the scope of the powers that this Bill confers on the devolved Administrations to allow them to prepare them for exit day. It would hamper their ability to address the deficiencies that will arise, and it would leave it likely that the laws would remain broken on the day of exit.
The process of making the statute book work for exit day is a joint endeavour between the different Governments and legislatures of the whole United Kingdom. This is an important project that entails a significant workload before exit day, which is why we are actively engaging with the devolved Administrations to build up a shared understanding of where corrections to the statute book would be needed. On that basis, I hope that the amendment will be withdrawn.
I hope I have dealt with the amendment in the name of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chair of the Select Committee on Justice.
Robert Neill
When the Minister talks about bringing forward a package on Report, do I take it that the amendment in my name and in the name of my hon. Friend the Member for Wimbledon (Stephen Hammond) is intended to be in that package?
The Solicitor General
I am always happy to engage with my hon. Friend and with my hon. Friend the Member for Wimbledon (Stephen Hammond). I know the spirit in which they tabled the amendment, and I look forward to the dialogue to come.
I commend clauses 2 and 3 to the House.
Several hon. Members rose—
The Chairman of Ways and Means (Mr Lindsay Hoyle)
Order. We have a lot of speakers and, as Members are well aware, there is no knife today. I will not be setting a time limit, so in order to get to the second debate I suggest that Members use up to eight minutes, including interventions.
Heidi Alexander
I rise to speak to new clauses 22 and 23 in my name. I say at the outset that I will not take interventions because I know other Members wish to speak. I put on record my thanks to George Peretz QC for his help in drafting the new clauses.
New clause 22 would prevent Ministers from using provisions in this Bill as the basis for withdrawing the UK from the European economic area, whether under article 127 of the European economic area agreement or otherwise. It would also ensure that Ministers cannot use the regulation-making powers they seek to give themselves in other parts of the Bill to circumvent that carve-out. It would mean, in effect, that if Ministers wanted to take us out of the EEA, which is the grouping of EU and non-EU countries that together make up the single market, they would need to introduce a separate Bill to authorise that.
Why is this necessary? The UK is currently a member of both the EU and the EEA. Although the bodies overlap, they have different member countries, they are governed by different treaties and they have different guiding principles at their heart. There is one process for leaving the EU, as governed by article 50 of the Lisbon treaty, and another for leaving the EEA—article 127 of the EEA agreement requires a member to give 12 months’ written notice. Parliament should determine whether we trigger article 127 to notify our withdrawal from the EEA, and not the Prime Minister sat behind her desk in No. 10. MPs in this House, the public’s elected representatives, should decide, and there should be a specific, explicit vote that is binding on Ministers.
The Government’s contention that it is not necessary to trigger article 127, and that we do not need formally to leave the EEA as we are a member simply by virtue of our EU membership, does not stand up to scrutiny. All EU states are listed as contracting parties to the agreement, in addition to the EU itself and the three non-EU EEA states.
The Government have changed their argument on article 127 repeatedly over the past year. One minute they argue that our departure would be automatic, and the next that our membership would be unworkable. They assert legal opinion as irrefutable fact. They fail to acknowledge that a basic principle of international law is that a treaty relationship with another state cannot be changed simply by changing a different treaty to which that state is not party and assuming a knock-on effect. And the Government fail to acknowledge that, at a time when we would supposedly be wanting to sign international trade treaties with other countries in our own right, we might be in breach of the treaty that underpins the EEA. This all sounds very legalistic, but the issue has critical importance beyond the legal technicalities.
At its heart, new clause 22 is about democracy and our country’s future. In last year’s referendum there was only one question on the ballot paper:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
The words “European economic area” or “single market” did not feature. Had Parliament wanted people to take a view on the EEA, we could have legislated for that in 2015, but we did not. Some people say, “Everyone knew it meant we’d be leaving the single market,” but that is simply an interpretation of the result. Some people may have voted to leave it, but others did not. The Government are now rewriting history: they claim that coming out of the single market and customs union is an automatic consequence of the leave vote, not their political choice. If just one tenth of those who voted leave believed that we would stay in the single market, there never was a mandate for the sort of Brexit that the Government are now pursuing.
We spend hours in this place debating all the twists and turns of negotiations, parliamentary processes relating to withdrawal and so on, but we never seem to get to the crux of the issue. That is what new clause 22 would do: give us a parliamentary lever to shape Brexit. Parliament must determine whether we leave the single market. We must decide whether Ministers should notify other countries of our intention to leave the EEA. The process must not be reduced to some sort of back-door authorisation that can be cobbled together by adding up various bits of the Bill, but that is precisely what the Government are trying to do.
I believe that the repeal of the European Economic Area Act 1993 contained in part 2 of schedule 8 will be used by Ministers, alongside the powers they want to give themselves in clause 8, to claim parliamentary authorisation for setting the ball rolling on our departure from the EEA. They will claim that the by-product of Parliament’s voting, as part of the Bill, to remove domestic UK rights for the citizens and businesses of EEA countries such as Norway, is a parliamentary authorisation to notify other EU and EEA countries of our intention to leave.
Anna Soubry (Broxtowe) (Con)
I know that an overwhelming majority of the people who voted in the hon. Lady’s constituency voted to remain. Does she share my concern that many such people feel completely excluded from Brexit? Does she think that this sort of debate will absolutely help to bring people back together and, perhaps, to form a consensus on Brexit?
Heidi Alexander
I completely agree. My new clause may offer some form of compromise, which I shall set out in due course.
How many of our colleagues actually understand what the Bill will do? Why do the Government want to avoid open and transparent debate? Why is there not a specific clause in the Bill that makes it clear? The answer is obvious: the Government are doing everything they can to avoid an explicit vote on whether the UK should leave the EEA and the single market. They are worried that there might be a parliamentary majority for a so-called soft Brexit, in which we put jobs first and anxieties about immigration and so-called sovereignty second.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
Will my hon. Friend give way?
Heidi Alexander
I did say that I was not going to give way to anyone, so I am not going to do it again.
New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say. If we do not change the Bill accordingly, we will have sold the pass.
Mr Hoyle, if you think the democratic arguments for the new clause are strong, I can tell you that the economic arguments are even stronger. The Government seem finally to have listened to business and have accepted the need for some form of interim arrangement to fill the hiatus that will exist between the conclusion of the article 50 negotiations and the signing of any new UK-EU trade deal. They claim that they want trade to continue on the same practical terms as today, for a time-limited period, even though they envisage that we will have legally come out of the European Union. That is basically an extension of EU membership, but without political representation: no British Members of the European Parliament in May 2019 and no representation at the Council of Ministers—no influence. The Government claim that that will not be the same as our remaining in the single market and customs union, although to all intents and purposes, it will be.
Banks, car manufacturers, IT firms, chemical producers and pharmaceutical companies all need clarity about their ability to sell into the European market and the continued viability of pan-European supply chains. The Government are right to want to give them certainty for a two-year period post the conclusion of the article 50 negotiations, but those companies need more.
If we are not going to lose jobs and investment, businesses need to know what tariffs will and will not apply on exports, what checks will be conducted on goods at the border, and what overall regulatory regime will apply to them in the future—not just in 2020, but in 2022, 2025 and beyond. A fudge might cut it for a few years, but it will not last forever. As a country, we will face a fundamental choice: do we align ourselves with European standards, or do we deregulate and go for weaker American or Chinese ones? There is not some fantasy mid-Atlantic option out there that the Government can conjure up, which is why continued membership of the European economic area could be so important.
Stephen Doughty
On an important point of clarification, my hon. Friend has made an incredibly strong speech. Citizens have only to go through the border and see EU and EEA as separate things on border signs to know the importance of the argument that she is making. Like me, would she like to see this measure put to the House at the appropriate time in the Bill, depending on the argument that we hear from the Government and others?
Heidi Alexander
My hon. Friend has issued a very timely reminder to me. If it were possible, I would like that to happen.
Robert Neill
It is a pleasure to serve under your chairmanship, Mr Hoyle.
This is another important debate on some key issues related to retained EU law. With no disrespect to my constituency next-door neighbour, the hon. Member for Lewisham East (Heidi Alexander), who made some powerful comments, I will concentrate specifically on those matters of retained law. As one might say in court sometimes, I adopt the arguments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I was about to say that I had nothing further to add, but I will not go quite as far as that. None the less, I do entirely agree with his approach to this part of the Bill and to what we should seek to achieve in relation to retained law.
May I add a couple of other broader observations? I very much welcome the spirit of the remarks made by the Solicitor General and the other Ministers currently on the Treasury Bench. I am grateful for their constructive approach. It is a reminder that Conservative Members have far more in common than that which ever might cause us to disagree about matters on this Bill. It is also a timely reminder that our commitment to protecting social standards and protections is undiminished.
As has been rightly observed, the Conservative party has historically always been a party of social protection and social reform, from the great Christian philanthropists such as Shaftesbury through to Peel—arguably one of the greatest of all Conservative Prime Ministers—and Disraeli and up to the present day. I include a short plug for a previous Member of Parliament for a good part of the Bromley and Chislehurst constituency, the late Lord Stockton, who was, of course, the Member of Parliament for Bromley. Many of us are proud to be in that one nation progressive tradition and want to ensure that we take that forward into the future.
I now turn to amendment 356, which is in my name and is supported by my hon. Friend the Member for Wimbledon. I am also grateful to the hon. Member for Ilford North (Wes Streeting) for adding his name to it. The amendment concerns the UK’s ability to maintain regulatory alignment in the immediate period after the UK leaves the EU, where there is EU-derived legislation that is not fully in effect on exit day. The Solicitor General was kind enough to refer to that topic when I intervened on him. I accept his intentions, but I would like to develop my view on these issues a little further.
As we already know, clause 3 will impose a strict cut-off on the law that is to be retained in that it must not only be on the books—so to speak—but must also be fully applicable and effective immediately before exit day. So far, so good; it is obviously right that Parliament should not automatically apply EU laws introduced after Brexit. It should decide whether we want to apply them, as a matter of our own sovereign judgment. There will be cases, however, where legislation is sufficiently far down the line as we leave the EU that a more flexible approach is justified. It is that limited, but important, area of cases that I will deal with.
There may be legislation that we have no problem with as a matter of policy and that businesses or other affected parties would wish to have—perhaps we were involved in its preparation when we were still a member of the EU. The European Scrutiny Committee and other parts of the House may even have had the opportunity to peruse the documents, and business and other affected parties might already be making preparations to implement and comply with that legislation. How do we deal with that? At the moment, it looks as though we would need primary legislation in those cases. That would be cumbersome for all the reasons that the Solicitor General recognised in his exchanges with the right hon. Member for Birkenhead (Frank Field).
John Redwood
I do not see the problem with that. If the piece of legislation is as benign and generally agreed as my hon. Friend says, it will go through the House quickly. If it is not actually agreed and there are lots of issues to tease out, should not we put it through a proper democratic process?
Robert Neill
I rather think that what I am proposing in my amendment is the use of the affirmative procedure. I never heard my right hon. Friend say that that was not part of the proper democratic process when he was a Minister and used it many years ago; nor have I heard him say that on other occasions when it has been used. It is a question of what is proportionate. I entirely accept that there has to be scrutiny and a democratic process. But, for the very reasons accepted in the discussion between the Solicitor General and the right hon. Member for Birkenhead—the volume of matters that we would have to deal with, even with the sensible triage arrangements that we have to put in place—I am not sure that we need to go down the time-consuming route of full legislation going through both Houses. I am trying to propose a compromise that would get us through a limited number of quite technical cases.
I will use some examples predominantly from the financial sphere, but the amendment would also apply should we need to maintain regulatory equivalency in things such as data protection, which is important for criminal justice and legal justice co-operation. There may be no such cases when we leave, but they are always possible. That is what we need to deal with, and the principle holds generally.
We may also need to deal with the difficulties that might arise in the context of EU legislation that is only partly implemented on exit day, or legislation that is enforced on exit day but whose effective operation depends on secondary measures that will be passed after exit day, which is not unknown even in our own domestic arrangements. In that situation, it would seem sensible to have the option to domesticate that EU legislation as it comes into force in the EU, so that it is enforced with us at the same time. We could do that through a vote on an affirmative resolution statutory instrument, rather than by having to pass new primary legislation each time. That is a practicality matter, and I suggest it is important.
Jamie Stone
Will the hon. Gentleman elaborate on that in the Scottish context? Further to what he has just said, we can imagine the discussions that would take place between Holyrood and Westminster. How would those be timetabled in terms of what he has just said?
Robert Neill
It would be for the Government to choose whether to bring such things forward. At the moment, it would be quite onerous to have primary legislation. Not all these issues will, of course, affect the Holyrood situation. Holyrood may well wish to adopt a procedure for devolved matters, and we could look at that constructively. If there is to be a package of further discussions, we could also consider that further. Scotland is important as a centre of financial services, as is the City of London, and we could try to develop these things as we go forward.
Robert Neill
I need to make some progress, so I hope the hon. Lady will forgive me. I have not much more to say.
Let me explain how this procedure will work. The proposed use of the affirmative procedure takes account of the fact that this amendment addresses only EU legislation that is in train, but not wholly in effect. These pieces of legislation have been subject to policy input and scrutiny processes, so they are very limited in number.
Support for this approach comes from two practitioner-based groups in the City: the International Regulatory Strategy Group, which I referred to in debate yesterday, and the Financial Markets Law Committee. The strategy group includes most of the key players in the London financial world. The law committee is an independent body drawn from leading practitioners in City firms and institutions and from members of the judiciary—in fact, it is chaired by Lord Thomas of Cwmgiedd, who recently retired as Lord Chief Justice. Their imprimatur is likely to indicate that this modest proposal has a pretty strong parentage in terms of its expertise and application.
The two bodies identify potential sources of legal uncertainty affecting the wholesale financial markets. Let me give two examples. First, there is the situation regarding the second payment services directive. The directive will apply from next year and will be domesticated, but important regulatory technical standards that will underpin the operation of the directive are not expected to be finalised by the European Banking Authority until after Brexit. At the moment, the Bill will not allow us to adopt those standards into UK law. The amendment would give us a streamlined means to deal with that.
Some of the provisions of the prospectus regulation came into force over the summer, and some important elements are due to take effect in the months after Brexit. Do we have to go through full primary legislation to incorporate that, or do we deal with it through a streamlined procedure? The City institutions and practitioners think it would be much more sensible to have the procedure I propose, so that they have certainty that they will not have delays in the primary legislative process. They can then have the regulation in place, and they are already prepared for it.
That is the nub of the amendment. I am grateful, again, to the Remembrancer’s Office of the City of London for its assistance with the drafting. I am sure the Minister will want to find the means to achieve what is set out in the amendment. I hope that he will be able to respond and find a means of taking this forward.
Kerry McCarthy (Bristol East) (Lab)
I rise to speak to my new clause 25, which has cross-party support. The Minister has already praised me from the Dispatch Box for the clarity with which I have spoken to it, but I can reassure him that now this really is me doing so. I also support new clauses 55 and 58. All these new clauses relate to retaining enhanced protections after exit day. As will be evident from other measures I have tabled, including new clause 28, which is in today’s second group, my main concern is retaining the valuable environmental protections that flow from our EU membership. However, of course, employment rights, equalities, and health and safety standards, as set out in new clause 58, which was tabled by Labour Front Benchers, are also vital, and the same arguments apply to them.
Priti Patel (Witham) (Con)
I am pleased to have the opportunity to speak in this debate, and particularly to clauses 2 and 3. Of course, my speech follows an intensive course over the past week on how to stage an exit, which was the focus of a degree of international attention. For anyone who is still tracking my movements, I can confirm that as I walked into the Chamber this afternoon, I passed statues and portraits commemorating some of our greatest statesmen, including Margaret Thatcher and Winston Churchill. Those statesmen stood up and defended democracy, freedom and the sovereignty of our great nation.
The Bill paves the way for a smooth withdrawal from the European Union. It complements many of our debates and discussions about article 50 and delivers on the will of the British people, as expressed in the referendum. I welcome the clarity provided by clauses 2 and 3. I pay tribute to my colleague the Solicitor General, who spoke with great clarity for almost an hour about providing guarantees and ensuring that a snapshot of EU law, as it currently applies, is maintained in this country.
The clauses are comprehensive and sensible. They outline pragmatically the steps that need to be taken to prevent a legislative vacuum. They provide important certainty to businesses and the public. They should help to ensure that the great Brexit trade deal that we hope to secure—and we will secure—for our country can be agreed with the EU on exit with regulatory equivalence in place in the right quarters. Of course, because we are taking back control, this Parliament, the Government and the devolved Administrations will be in a position to amend, adapt and change measures, as appropriate, in the years ahead.
Wera Hobhouse
Does the right hon. Lady agree that we risk sacrificing parliamentary scrutiny because we are in a big rush to get everything done? Exit day is looming and it is now widely agreed that we face a massive task, so we are rushing everything and sacrificing parliamentary scrutiny.
Priti Patel
I respectfully suggest that scrutiny is the purpose of these debates in Committee. We should have a great deal of pride in our role in that scrutiny. We must work with the Government and Ministers. Yes, part of that work is the tabling of amendments, because that is the nature of debate, but our job is to look pragmatically at the right way to deliver the referendum outcome. As we have heard from many Members, including in good contributions today, we will keep measures that are in our interest and that work for our country, and we will of course amend and revise those that do not.
Clauses 2 and 3 are about not only taking back control of those laws and putting power back into the hands of our lawmakers, but introducing accountability through scrutiny. During our consideration of our withdrawal from the EU, Members have tabled amendments—and rightly so—but we should not listen to those who do not have confidence in this House, our democracy and our country, and we should reject the suggestion that we are incapable of governing ourselves. That clearly applies to comments that we have heard not just today, but in previous debates, and predominantly from Opposition Members. They may want to be governed by the EU because they feel unable to govern themselves, but we fundamentally believe that our democratic institutions, and this House in particular, are held to account by the British people, and that we can make laws in all areas covered by the EU.
James Cleverly (Braintree) (Con)
Does my right hon. Friend agree that the implication that somehow Britain would be a horrible, ungovernable place were it not for the benign guiding hand of the European Parliament and European legislators is a massive insult not just to Members, but to every single person in the country?
Priti Patel
My hon. Friend makes an important point.
One great former leader, Margaret Thatcher, once said:
“What is the point of trying to get elected to Parliament only to hand over…the powers of this House to Europe?”—[Official Report, 30 October 1990; Vol. 178, c. 873.]
We now have the chance to move in the right direction, and to deliver on the will of the British public through the mechanisms available to us and following the scrutiny we are carrying out in this House of Commons. Importantly, we can also look at how we can make better and more effective laws. We have very clearly heard from the Solicitor General how we will be proceeding with the right approach, and how we will develop high standards that are in our national interest.
Tom Brake
The right hon. Lady is clearly very keen that Members should scrutinise things effectively. Does she therefore agree with me that the Government should not allow new agencies to be set up, or the role and responsibilities of existing agencies to be changed, through secondary legislation, because such things should be done through primary legislation?
Priti Patel
The right hon. Gentleman knows that secondary legislation is scrutinised. We all have an effective role—I am sure he has experienced this many times while he has been a Member—in scrutinising secondary legislation.
We will have the opportunity to make and amend laws, and also to look at what will work in our national interest. Quite frankly, I take great pride in that as a Member of this House of Commons. I take great pride in taking part as a British citizen, in this British Parliament, in standing up for our national interests on the laws and decisions made for our country.
Of course, that means not that we will cut or axe regulations arbitrarily, but that we have the ability over time to look methodically at our laws and how to change them and, in particular, at how to make them reflect modern challenges in ways that are most effective for our economy, our country and our future prosperity, and that applies to every aspect of policy.
Jamie Stone
This partly repeats my previous point, but does the right hon. Lady recognise that, whichever way this law is approached, the crucial issue is keeping Scotland’s financial industries safe and letting Scotland prosper, because there is a grave danger of getting this wrong, whether through primary or secondary legislation?
Priti Patel
I am sure that the hon. Gentleman, like me and all Members, believes in Britain’s future prospects outside the European Union, and in how we will work together—across all political parties; across the devolved Administrations; across the country—not only to get the best deal for Britain, but to safeguard and secure key services and key sectors across the economy.
New clause 51, which was tabled by the right hon. Member for Birkenhead (Frank Field), who is not in the Chamber at the moment, raises the prospect of reviewing EU legislation that is still applicable in the UK six months after our departure and at least once a year thereafter, together with proposals for the re-enactment, replacement or repeal of such provisions. I actually have some sympathy with the objectives of the new clause, but I would expect those very actions, and particularly such scrutiny, to be undertaken by the Government.
We should welcome the fact that Members will be able to come forward with their own ideas about how we embark on our future outside the EU. We will be able to modernise our laws more quickly and make them more relevant more efficiently, because we will have control over them. That is the fundamental point. In that way, we will have modern regulations that will maintain and protect rights, as the Prime Minister has guaranteed and as the Solicitor General mentioned.
We can look at repealing many of the laws that are simply not functional and that add costs, and we can also go further than the EU when it is in our national interest to do exactly that. This country has a strong record on some of the areas that have been mentioned, such as legislation on employment and social rights—my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) spoke about that—as well as environmental and other laws we passed before we joined the European Union. We will continue to lead the way and, indeed, pave the way when it comes to that strong record.
Importantly, clauses 2 and 3 will fulfil the wish of the British people to be free from the European Union and many of its controls. Over the past 45 years, the European Communities Act 1972 has been the mechanism by which the sovereignty of this Parliament has been eroded, with more areas of law being taken over by the EU. The Bill puts all those EU laws, regulations and other measures under our control.
The clauses are essential to deliver the commitment that most Members have made since the referendum, including at the election. We are a proud country with a rich democratic history, and this is one of the greatest Parliaments in the world. The Bill strikes at the heart of the issue of trust in Parliament and politics. Do we trust the British people, who voted to leave the EU and to move on, or do we want to go against their wishes? These clauses will go far enough to deliver the outcome of the referendum and, importantly, our own governance and leadership for the future, which is exactly the right way forward.
Mr Chris Leslie (Nottingham East) (Lab/Co-op)
It is a pleasure to follow the right hon. Member for Witham (Priti Patel), who has had a busy few weeks. Brexit must not mean isolationism for the United Kingdom. The right hon. and learned Member for Beaconsfield (Mr Grieve) spoke of a global Britain and globalisation, and we have to recognise that we live in an interconnected world. The right hon. Lady did her duty and played her part at the Department for International Development, helping to save lives and foster that interconnected world. In some ways, she helped Britain and DFID play their part in pooling sovereignty with other countries, working together to make sure that we can deliver positive outcomes internationally.
It is partly in that spirit that I tabled new clause 15, which would make sure that, after Brexit, we stay informed about developments in the European Union and the European economic area. If they depart from our corpus of law and regulations, it is important that we know and are informed about it, and that we keep pace with and are aware of what they are doing. It would be to the advantage of the House of Commons and Parliament in general if we make sure that we know about any EU reforms and any ideas it develops, because ultimately there is a crucial question about our economy and its linkages with our nearest neighbours across the European Union. We cannot just pretend that we are isolated and cut off from them and that we have nothing to do with their economic progress. Our fate and theirs are integrally linked.
It is important that we should have the option of keeping pace with the EU and the EEA, for a number of reasons. We have an integrated economy and we share the EU’s warehouse inventory with regard to many of the goods that are produced and manufactured in this country. The relationship goes beyond hard economics; we have cultural ties and share other interests as well.
If there is a hard-headed economic case, it must lie in the notion of regulatory equivalence. Keeping pace with the way in which Europe develops is ultimately also in the UK’s own economic interests. If we are going to retain trading rights in full with our counterparts across the continent, I believe that the UK’s policy should be to ensure that there is regulatory alignment wherever possible.
It is often said that there are three broad regulatory paradigms in world trade today. The European paradigm effectively follows the precautionary principle when it comes to regulation. The American approach is a much more hard-headed cost-benefit analysis, which of course can often result in different regulations, and the growing regulatory approach of the Chinese is one that we might characterise as expansionist in its own particular way. I personally believe that we need to make a choice. As hon. Members, including my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), have often said, this is not just a matter of negotiation; it is also about the UK having to make a choice of where we are in the world. My view is that our interests are best served by keeping pace and alignment with the precautionary principle approach to regulatory change that exists in Europe. New clause 15 would allow Parliament to stay informed about what is happening on mutual recognition agreements and the accreditation of professional services. This is a dynamic economic area and we have to recognise that we are not entirely on our own.
Graham Stringer (Blackley and Broughton) (Lab)
As ever, my hon. Friend makes a rational case, but can he tell me what he would do with extremely damaging and bad EU regulations? I will give him two examples: the electromagnetic field directive stops the use of the scanners in our hospitals and the clinical trials directive is so burdensome that it stops drugs coming on to the market for up to 10 years. Surely he would not want us to be aligned to those regulations, but want us to have better regulations?
Mr Leslie
I would want us to shape those regulations, because we are going to be affected by them. If our near neighbours—500 million residents—operate under one regulatory regime, many of our products and services will have to comply with it. It is far better that we are able to take part in the discussion and shape those regulations. In accordance with the Bill, we may leave the EU—if that does come to pass—but if we were part of the European economic area, we may still have a say on some regulatory changes. I understand the point my hon. Friend is making, but my amendment would not tie the UK to every regulatory change that takes place within the European Union; it would simply make sure that Parliament is informed when the European Union branches off and goes in a different direction. We need to know that information so that we can make a choice as laws change. If the EU takes a different route, we may want to consider doing so ourselves. We may not, but we may. That is simply the point I make in new clause 15.
New clause 55, in the name of the right hon. and learned Member for Beaconsfield, and new clause 25, in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), address the issue of retained EU laws. Over 20,000 laws and 12,000 regulations will need to be transposed in some way, shape or form. That is a massive process of change and it is still not clear whether we will convert European laws into primary legislation, secondary legislation or something else entirely. It is sensible to have a schedule that lists retained EU laws and I think the suggestions in the new clauses should be accepted.
It may be that not everything can be changed. If there are modifications via primary legislation, we might want the enhanced scrutiny procedure. When the Minister was pressed on this issue, however, he did not in any way give a proper concession to the points made by Members on both sides of the House. We could face circumstances where the EU laws to be modified affect equal pay, the treatment of workers with disabilities, or race and age discrimination. They were not part of primary or secondary UK legislation, but EU laws that we are going to co-opt. If there is to be a change to the set of rules under which we operate, we need much more clarity on whether it will involve this House of Commons doing it in an affirmative way through an enhanced procedure, or, preferably, through primary legislation.
The Minister needs to do more than just promise to look at this matter on Report, because we may not get a Report stage. We have a Committee of the whole House stage, so unless the Bill is amended there will not be a Report stage. The Minister needs to acknowledge that if we do not have a Report stage, any such assurances are not really worth that much.
The Solicitor General
Yes, there will be a Report stage. I can assure the hon. Gentleman of that.
Mr Leslie
I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that.
My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU—on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decision”, just will not do.
Mr Jim Cunningham
My hon. Friend has listed what we would like to see. Would he also include regional aid, which is very important to west midlands manufacturing industries?
Mr Leslie
Regional aid—and the financial side—probably has more to do with the EU, and the Government have to say how they would substitute that. All these policies are much affected by our membership of the EEA. The only things not in the EEA are many of the customs union and trade policy arrangements. If we want a smooth Brexit—a soft Brexit, we might call it—membership of the EEA is by far the better arrangement. Rather than climbing every mountain rebuilding a trade relationship with the EU, as well as reaching all the free trade agreements with the rest of the world, we could retain our membership of the EEA and with it those trading benefits with the rest of Europe, while still being free to make trade agreements with those other countries we could negotiate with. That would be a bite-size way to deal with this change and more effective than having to climb all those mountains simultaneously.
Mr David Jones (Clwyd West) (Con)
How could the UK continue to enjoy the trading benefits of EEA membership without being a member of the European Free Trade Association?
Mr Leslie
I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.
Sir Oliver Letwin
There is a danger in Committee that we get sidetracked into rehashing the whole of the Second Reading debate, and I certainly want to avoid that at all costs. Moreover, I have no basic problems with the structural phrasing of clauses 3 and 4, unlike clause 6, which we debated yesterday and will be discussing further anon.
I want first to put on the record what I think my hon. and learned Friend the Solicitor General, in a helpful series of exchanges with various Members, has already confirmed and then to point out one interaction with clause 6. I understood him to say that at an appropriate point, either on Report or in another place—on Report, I hope—the Government would come forward with some mixture, to be decided, of changes to Standing Orders and changes to the Bill to ensure some process for Parliament to sift, or to have sifted on its behalf and then reported to it, all the proposed amendments to existing EU legislation incorporated or saved under clauses 3 and 4, and indeed any others.
Sir Oliver Letwin
Sorry, clauses 2 and 3. I do apologise. My right hon. Friend accurately corrects me, and I hope that Hansard notes that correction.
If that is therefore what my hon. and learned Friend said, I have nothing further to add to it. However, I want to point up one connection with the useful discussion we had yesterday about clause 6. The more I have thought about this over the past few weeks, the clearer it has become to me that the ultimate resolution to the problem of the unrestrained abilities of the Supreme Court under clause 6(4)(a) is to make it clearer in the Bill that the method by which any change in the snapshot legislation that my hon. Friend the Minister of State, Ministry of Justice, was talking about should be made not by the Supreme Court, but by Parliament. The point is that, so far as there is fundamental change, and in particular so far as there is fundamental change in the interpretation of the plain words of directives, regulations and treaties, it should be made by primary legislation.
That puts primary legislation in the right place, and hence puts the Supreme Court in the right place, because the Supreme Court is there to interpret the common law, which this is not, and to interpret statute, which this could and should be, and it can certainly also interpret European law using European principles except to the extent that, through statute, this Parliament has changed those things.
That would be a perfectly recognisable pattern. As I mentioned yesterday, it is not my ideal pattern, as I would like to unwind in the Bill a good deal of the expansive interpretations of the European Court of Justice that have gone before exit day, but I recognise that the Government might not want to do that. It does not worry me if they do not, because this Parliament, post-Brexit, will have the ability to do it, which is, from my point of view, even speaking as someone who on balance was a remainer, the big advantage of exit. We will be able to make those decisions as a Parliament through the proper process of primary legislation.
By coming forward with the package that I think my hon. and learned Friend the Solicitor General offered the Committee a little while ago in this debate, he will also point the way to at least a great part of the solution to the problems of clause 6. While we are at it, just as a bonus, we have not yet debated clause 5—assuming I have my numbers right—but we will do so anon. When we do, we will hit exactly the same set of issues in a slightly modified form. While we are at it, we will hit this again in clause 7, in another way. The same package that the Solicitor General has suggested will handle all the problems arising from clauses 5 and 7, and point the way to handling the problems with clause 6, once we have got rid of the clause 6(4)(a) error.
We have a pattern here that can make the Bill work in its own terms. It can provide the flexibility that the Government need in order to correct deficiencies, to transpose or adjust things when references are technical or incorrect, to bring to the House important matters that need adjustment but are not fundamental, and to give this Parliament the power it needs to change the law fundamentally and to make that something that Parliament does, rather than the Supreme Court. If we can get to that point, we will have a Bill that is perfectly good in its own terms and that will serve the purposes that the Government intend for it, and I shall rest happy in the knowledge that I have in a small way been able to contribute to a series of debates that will have provided legislation of which we can be proud.
Mr McFadden
I want to make a few points about new clause 22, which my hon. Friend the Member for Lewisham East (Heidi Alexander) spoke to a little while ago. Language can obscure things as well as shed light on them, and that is true of much of our Brexit debate. For example, we were told that this was all about taking back control but, as we have seen many times since the referendum, the Government have stoutly resisted giving control to Parliament, resisted publishing a White Paper, and resisted allowing us a meaningful vote. They have finally caved in on having legislation, but they are still resisting allowing us a meaningful say on a real choice, rather than a choice between whatever is negotiated and no deal and WTO rules. We were told that Brexit would save huge amounts of money, yet one of the critical issues in the talks is how to settle a multi-billion pound divorce bill that was mentioned by no one during the referendum campaign. So language can obscure as well as shed light.
Perhaps this is nowhere more true than in all this talk about “the negotiations”. Unsurprisingly, the public place great faith in anything called “negotiations”. If I were buying a house from someone—I hesitate to tread here after yesterday’s exchanges—who was asking a certain selling price and I offered a certain purchase price, the negotiation would involve us meeting somewhere in the middle. There might be parts of the Brexit talks that involve negotiation in that sense of the word.
I serve on the Brexit Select Committee, but I should add that I do not seek to speak on its behalf here today: this is my interpretation of the situation. Last week, the Committee spent a couple of days in Brussels and Paris talking to some of the people involved in the so-called negotiations. There may be negotiation about parts of this process, particularly in phase 1, but the point that I want to make—which refers to new clause 22 and the European Economic Area—is that our future relationship is less about negotiation than about a fundamental choice. What is the relationship that we want to have with the European Union? Where do we want to be in relation to its system, which is a market with rules? The people that we talked to about this round of talks made it pretty clear that this is a choice. It is a decision.
Basically, there are two ways of doing this. The first is the way outlined by my hon. Friend the Member for Lewisham East—that, having voted to leave the European Union, we remain part of its single market system and adhere to the rights and obligations that that gives us, and in so doing, we put the economic prosperity of our people first. That is one way, and I wholeheartedly back my hon. Friend’s assertion that the referendum did not decide this question. The referendum decided our membership of the institutions. The referendum did not decide on the manner of leaving the European Union. There are countries outside the European Union that take part in this system, and we know which they are. I do not think that this is a perfect solution by any means. There is, of course, the issue of having a say in the rules, and whatever our say is outside, it will not be like the say that we have now. My hon. Friend the Member for Lewisham East covered that as well.
The other option involves a free trade agreement, something akin to what has been negotiated with other countries. This matters to our economy. We have talked a lot in these debates—and I have been guilty of it myself—about the importance of manufactured goods. We have talked a lot about cars, we have talked a lot about aerospace, and we have talked a lot about agricultural products. All those are all hugely important to our economy, but 80% of it consists of services. We are hugely successful at them, and we are hugely successful at exporting them. Tens and hundreds of thousands of jobs are sustained by financial services, insurance, legal services, business services and so on. I must say to those who advocate the FTA option that the blunt truth is that no existing FTA would give us anything like the access to the services market that we currently enjoy as members of the single market.
That, fundamentally, is the choice that we must make. The Solicitor General resisted the existing comparisons, as the Government have throughout: they have said, “We will have a bespoke arrangement that is somehow different from this.” Let me tell the Solicitor General candidly that not a single person on the other side of the table last week thought that that was possible.
This is a decision, a choice. What kind of Brexit will we have? Fundamentally, at some point, the Government will have to face up to the truth, be candid with their Back Benchers and the House as a whole, and be candid with the public. The choice, in the end, is not just a choice between systems, but a choice between economics and nationalism. It is a choice about whether we put the prosperity of our constituents first or the nationalist ideology that is driving this agenda, and I know which I prefer.
Mr David Jones
I wish to speak about amendments 87 and 217, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and his Plaid Cymru colleagues.
Amendment 87 provides that the expression “EU-derived domestic legislation” in clause 2(2) should not include
“any enactment of the United Kingdom Parliament which…applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006”,
and seeks to apply the same provision, mutatis mutandis, to Scotland and Northern Ireland. The matters specified in Schedule 7A are those matters that are reserved to the United Kingdom Parliament under the terms of the Welsh devolution settlement. According to the explanatory statement attached to the amendment, its purpose is to
“alter the definition of EU retained law so as only to include reserved areas of legislation. This”,
it explains,
“will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.”
However, the actual effect of the amendment would be far more wide-ranging.
The purpose of clause 2(1) is specifically to preserve EU-derived domestic legislation after exit day in order to ensure—as we have heard—that there is a coherent statute book. The expression “EU-derived domestic legislation” is defined in clause 2(2), and the category of legislation that is thereby preserved is very widely drawn. The effect of the amendment would be that any legislation applicable to Wales that might otherwise fall within the definition of EU-derived domestic legislation would fail to do so if it were also an enactment of the United Kingdom Parliament. There will be a wide range of such legislation in force that predates devolution and also postdates it, right up to—I venture to suggest—the enactment of the Government of Wales Act 2017.
Wera Hobhouse
Does the right hon. Gentleman agree that if we want to trade with other nations, we must have some form of agreement with them? We cannot just trade and have our own arrangements and regulatory systems without any agreement with other nations or states who want to trade with us and without a body acting as referee. We therefore must at some point be part of some sort of agreement or arrangement with other countries, otherwise we will just sit there somewhere in the North sea on our own.
Mr Jones
That may well be so, but I invite the hon. Lady to digest the terms of article 126 of the EEA agreement and then consider whether at the moment of our departure from the EU we will still be subject to the EEA agreement. I believe we will not.
For the reasons I have outlined, I invite the hon. Member for Carmarthen East and Dinefwr not to press amendment 217, too.
Jonathan Edwards
It is a pleasure to follow the right hon. Member for Clwyd West (Mr Jones). In the normal course of events he would be responding to our amendments, but I must say that much of what he said today went completely over my head; I will have to read it tomorrow in Hansard and try to dissect it. Perhaps we can debate it on another occasion.
I rise to speak to amendments 217 and 87, tabled in my name and those of my hon. Friends. They are probing amendments, so I do not aim to detain the House for a protracted time. Along with amendment 64, amendment 217 would exclude the EEA agreement from the Bill, allowing the UK to keep open the option of remaining in the EEA as the negotiations proceed. Currently, the Bill seeks to repeal the domestic effects of the EEA agreement, but the British Government have given no explicit notice to withdraw under article 127 of the EEA agreement. Our departure from the single market is therefore not inevitable, and there is still time to change to a path that puts the economy first, as many hon. Members have said.
Our continued membership of the single market and the customs union is absolutely crucial to the viability of the Welsh economy beyond Brexit. In wanting to leave the single market and the customs union, the Government are contradicting themselves. The European red tape that the Brexiteers belittle as a regulatory burden also safeguards the environment, keeps our food safe and our rights upheld. By taking the UK outside of the EEA and the customs union, the Government would be generating a gratuitous amount of red tape for our key exporters. Employers in my constituency would face unnecessary logistical and financial barriers to sell to their European markets, which are by far the most important for our exporters.
We have been told again and again that a hard Brexit will reinstate the UK as global power. Despite sounding appetising, that is wholly illogical. It is counter-intuitive to say that removing the UK from the most successful and richest economic bloc will in any way make the UK more global. In reality, the Tories are reverting to their 19th-century policy of splendid isolationism. To leave the single market and the customs union is to voluntarily exclude ourselves from having unencumbered access to the markets necessary for the post-Brexit longevity and viability of the economies of Wales and the UK.
The statistics do not lie. Wales exports some £16 billion-worth of goods every year—more than the Welsh Government’s entire budget. Despite reducing access to our main markets in Europe, the Government have no guarantee of any access to new markets after exit day. Some 200,000 jobs across Wales are sustained by the single market and the customs union. By wrenching us out of both frameworks, the British Government will be rolling the dice on the livelihoods of these 200,000 Welsh people.
Angus Brendan MacNeil
The UK Government are not content with raising trade barriers with the 27 countries in the world with which we do half our trade. By fact of the 38 other agreements that the European Union has with other countries, that means another 67, so there will be 94 countries with which trade would involve higher barriers. When Ministers are asked about the number of countries, they have no idea how the dice will roll.
Jonathan Edwards
The Chairman of the International Trade Committee speaks with great expertise. That was one of the first questions that I asked the Secretary of State for International Trade when he was appointed, and it has been forgotten in this debate. The Government informed us at the time that the transition would be seamless, but it appears that that might not be the case.
These are not idle threats; this is the reality. Only yesterday, Aston Martin’s CEO came here and told Members directly that a no-deal Brexit would mean the cessation of production of their cars in the UK. That means their new flagship plant in the Welsh Secretary’s backyard in the Vale of Glamorgan could be pulled even before it begins production of the first car.
My concerns, and those of my Plaid Cymru colleagues, are entirely predicated on Wales’s national interests. That means ensuring full and unconstrained access to our important European markets, which are the destination for 67% of all Welsh exports and 90% of our food and drink exports. It means our NHS, universities and industries being able to recruit skilled workers from across Europe. It means putting Welsh jobs, wages and, fundamentally, my nation’s future first. It is not feasible that trade deals with Australia, New Zealand and other far-flung nations will replace the level of economic activity that the EU trade sustains in Wales.
Leaving the single market and the customs union does not mean going back to some comfortable status quo. We need a reliable and effective system in place to prevent potential catastrophe on exit day. We have the option of remaining in the single market and the customs union, as has been made clear by chief negotiator Michel Barnier during the discussions to date. Maintaining those vital economic frameworks would be the most prudent economic path to take, instead of endeavouring to create something new and untested that could not possibly replicate the benefits of EEA status.
Mr David Jones
Before the hon. Gentleman leaves his discussion of EEA membership, does he not accept that article 126 of the EEA agreement provides explicitly that it applies only to members of the European Union and to the relevant members of EFTA? Given that we will be neither, how can it possibly apply to us?
Jonathan Edwards
That point was also made by the First Minister of Wales when he was against this position, before he changed to agreeing with Plaid Cymru. Surely we should be endeavouring to achieve what was promised by Brexiteers such as Daniel Hannan prior to the referendum. He said that the Norway solution would be the most applicable and best solution for the UK.
Stephen Kinnock
I will try to assist the hon. Gentleman. The United Kingdom signed the EEA agreement in 1993 as a sovereign country. The United Kingdom is a single and separate contracting party. The body of legal opinion is very divided on this issue. Eminent experts such as Charles Marquand and George Yarrow have made it clear that they believe that to leave the EEA, the United Kingdom must trigger article 127 of the EEA agreement. Given that legal opinion is divided, this is surely a political issue that needs to be brought to this sovereign House so that we can take back control and have a proper debate and a vote.
Jonathan Edwards
I am always grateful for the hon. Gentleman’s assistance. He also speaks with great authority on these issues.
From where I approach these negotiations, it seems that the British Government’s decision to be outside the single market and customs union has created huge friction in the negotiations with the European Union. If we were to say that we wanted to stay inside the single market and customs union, I hazard a guess that the negotiations would proceed at a far greater pace and would reach a far more amicable destination.
Amendment 87 would alter the definition of EU retained law so as to include only reserved areas of legislation, which would allow the National Assembly for Wales and other devolved Administrations to legislate for themselves on areas of EU-derived law that fall under devolved competency.
After two referendums and hundreds of thousands of votes cast, the people of Wales chose to create a primary law-making Parliament in Cardiff that decides on the policies that matter most to the people of Wales in their day-to-day lives, such as education, health and the environment, to name but a few. The latest round of devolution saw the creation of the reserved powers model, stripping away the unnecessary jargon and constitutional complexity, which in effect means that the National Assembly for Wales has control over everything that is not explicitly listed as a matter kept by Westminster. It was meant to simplify matters and create clarity. In fact, the current Secretary of State for Wales went as far as saying that the change would settle the constitutional question in Wales for a generation. We can only assume that he was talking in terms of fruit flies, as before April 2018, when the newest devolution settlement comes into full force, we face nothing short of a constitutional crisis.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Is that not the crux for both Scotland and Wales? The basis of the Scotland Act 1998 was that everything not reserved was devolved. Bringing powers to Westminster instead of to where the competencies lie reverses that principle.
Jonathan Edwards
That is why the Scottish and Welsh Governments, in a joint declaration, said that this Bill is a naked power grab. That is what amendment 87 seeks to address.
The UK Government’s withdrawal Bill flies in the face of the reserved powers model. Rather than the new powers brought about by Brexit flowing straight to Wales, as would be the case under the reserved powers model, they will be kept under lock and key in Westminster in what the UK Government are calling a “holding pattern.” All we have is the UK Government’s boy scout promise that one day we might get back those powers, as well as the ones we have lost for that matter. If devolution is a process, why should we assume that centralisation is not?
Angus Brendan MacNeil
Ironically, the hon. Gentleman is describing the creation of the British superstate of the United Kingdom. The Government have taken to the centre all the powers that should be devolved. The supreme irony is that they were complaining that Europe is a superstate—it is not, it is a trade bloc. To get out of that trade bloc, the Government themselves are now creating a superstate.
Jonathan Edwards
That is the fear we face. Brexit is being used as a tool to reassert Westminster control over the British state, as opposed to the devolution settlement we have had since 1999. There is nothing to say that, come Brexit day, Westminster will not decide that all powers must make their way back to the corridors of SW1. It has come to the point where my party is proposing legislation in the National Assembly simply to defend the lacklustre devolution settlement we already have. My colleague, Steffan Lewis AM, has proposed a Welsh continuity Bill that would give the Welsh Parliament the legislative might it needs to take on Westminster and the power grab contained in this Bill.
Last night, the House blocked Wales’s voice on Brexit. My voice, and that of Plaid Cymru, cannot be silenced, and we will do everything we can to stop the constitutional and economic chaos that the Bill would impose on our nation.
John Redwood
The good news coming out of this debate is that everyone in the House agrees with clauses 2 and 3, on which the clause stand part decision will be made shortly. We are all in favour of them because they are pretty straightforward. Clause 2 says that all the European law that came to the United Kingdom by way of directive is now fully incorporated into statute law and statutory instruments in the United Kingdom, and that that will continue. All that law that comes to us directly as a regulation or a Court judgment will, up to the date of exit, be transferred and incorporated into good UK law by virtue of the legislation before us, and particularly by virtue of clause 3.
It is good news that we all agree with the main item on the Order Paper for this afternoon, so why are we having a long debate? My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and my hon. and learned Friend the Solicitor General got to the heart of the debate during their interesting exchanges. I pay tribute to my right hon. Friend the Member for West Dorset and agree with a lot of what he said.
The issue revolves around what scrutiny and interest Parliament should take when the transfer of European law that currently directly affects UK law requires some changes. Most of us think there are going to be a lot of changes and that most of them are going to be entirely technical or minor. They will adjust the EU to having one fewer country in it, recognising that we are no longer a member, or adjust the appeal body to a natural appeal body that is already well established by statute in this House, which is a UK body, not a European body. It is the right of the House and of Parliament to decide how much scrutiny any one of those things needs and to give it the proper attention required to check that the Executive are doing a good job.
We all want to ensure continuity of the law. We recognise how many changes and proposals are involved, so we need a way of sifting so that Parliament can concentrate on the ones that could be genuinely contentious or are more material than the others, thereby ensuring that Parliament does not waste too much time. Parliament must decide how much it trusts Ministers to do the sift for it, and I look forward to hearing further thoughts from my colleagues on the Front Bench on exactly how that process is going to work. Personally, I trust the Ministers. From my point of view, the changes are all going to be technical and I do not believe that there is going to be any attempt to change the law. Were there any such attempt, Parliament would be well up to the challenge and there would be an almighty row pretty quickly.
Peter Grant
There is a need for Parliament to be able to trust the Government, but does the right hon. Gentleman accept that the Government have indicated through their actions so far that they are not prepared to trust any Parliament in which they do not have an absolute majority? Were the Government prepared to trust Parliament to a greater degree, we would not be having to go through some of the constitutional hoops that are before us.
John Redwood
I think Parliament is doing a good job of explaining to Ministers exactly what Parliament wants, and I think it is going to carry on doing that. I have every confidence in Parliament. I look forward to hearing what more can be said from the Front Bench in due course. I think it is all going to be technical and so can be done expeditiously, but clearly Parliament needs to be satisfied. I am completely satisfied that in the areas for which the official Opposition would like there to be some kind of reserve or special status, there is absolutely no intent to amend, change or repeal on either side of the House.
I have heard strong assurances from all parties that there is absolutely no wish to water down employment protections or environmental protections, and I see absolutely no evidence that anyone would try to do that. I am quite sure that, were they to try, they would soon discover that there was an overwhelming majority in the Commons, on the Government and Opposition Benches, of very many people who would say, “You cannot do that,” and we would have every intention of voting it down.
Those laws already in place came via directives and are very much at the heart of what they are trying to protect. They are trying to protect something that Parliament has already put through as UK legislation. No manifestos or other party statements have threatened them, which implies that those things are at risk. It is also important to remember that when many EU directives were implemented—whether by Conservative, coalition or Labour Governments—that was often done in a way that went beyond the minimum standards that the directive required. Where it was possible to go beyond those standards, quite often successive Governments decided to do just that.
Margaret Greenwood
A recent TUC study found that many low-paid workers can be disciplined for taking time off for childcare. Does the right hon. Gentleman agree that the right under the parental leave directive to take time off work to take a sick child to the doctor or arrange care for an elderly relative is an important protection for British workers?
John Redwood
I am sure that it is an important protection for workers. I do not think that anybody is threatening the protections that are already incorporated into our law codes. We will have many productive debates in future about how we can raise those standards and where we should raise those standards, as we have done in the past.
The House should remember that much of this is already in British law and goes beyond the EU minimum standards; it would be very perverse to think that Parliament would then want to turn around and start taking away those standards when it had made this very conscious effort to go beyond the EU minimum standards. It also reminds us that this House has been quite capable of imposing good standards over and above the European ones and that we are not entirely dependent on the European Union to do that.
I would like to pursue the point of my right hon. Friend the Member for West Dorset by pointing out that there are consequentials from taking the approach that the Solicitor General said that the Government are considering on clause 6(4)(a). Again, I echo what has been said, which is that it is very important that clarity is given to our Supreme Court. Like my right hon. Friend, I want the ultimate arbiter of these things to be Parliament. That is what taking back control is all about. If the Supreme Court feels that it needs more parliamentary guidance, then that is exactly what we must supply either through this or subsequent legislation.
We now come to the important set of issues that various Members have raised about what should be done by primary and secondary legislation. I suggest that, at the moment, we stick to our general rules for non-EU proposals. We know that important matters deserve primary legislation and that ancillary matters, usually arising out of primary legislation, can be done by statutory instruments, usually identified in the primary legislation itself. There needs to be primary legislation cover for the use of the SI principle. Again, Parliament has a way of deciding which ones are a bit more important and so need an affirmative resolution procedure and debate, and which ones are done by the negative resolution procedure. Where the Opposition want to call in one for negative resolution, they do get a debate and a vote, because that is part of the system that we should apply.
On the proposal of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), I say that we should not be asymmetric in our democracy. He suggested that major pieces of legislation coming from the EU that are in passage but will not be completed by the time we leave the EU should go through under some fast-track SI procedure. I think that those pieces of legislation should face exactly the same procedure that anything else faces in this House. If they are technical or relate to some major piece of legislation that has already gone through, then of course they can go through by statutory instrument if we wish to replicate the European law. If they are substantial and new, they will clearly need to go through the primary legislative process, because we have been arguing that we need more scrutiny and more debate about this important piece of legislation, which makes everything possible.
I see clauses 2 and 3, along with clause 1, as a platform. They are very much a piece of process legislation—the legislation that takes back control. In itself, it does not prevent this Parliament in future doing its job a lot better than it was able to do when quite a lot of our laws and regulations came from Court decisions over which we had no control, from regulations on which we might even have lost the vote, or in circumstances where we were not very happy about the compromise that we had to strike to avoid something worse.
This is a great time for Parliament. I hope that all Members will see that it enables them to follow their agendas and campaigns with more opportunity to get results if they are good at campaigning and at building support in Parliament. That is exactly what clauses 2 and 3 allow us to do. The legislation will allow us to go on to get rid of VAT on items or to have a fishing policy that we think works better for the United Kingdom, while, of course, protecting the many excellent protections in employment law and other fields that have been rightly identified by the Opposition. I recommend these two clauses, which I am sure will go through, and I look forward to hearing more comments from Ministers in due course about how Parliament can satisfy itself on any changes needed to make all those laws continue to work.
Chuka Umunna
I will speak about the new clauses tabled by Opposition Front Benchers, particularly those on employment law, and about the new clauses in the name of my hon. Friend the Member for Lewisham East (Heidi Alexander).
First, I notice that the right hon. Members for Broxtowe (Anna Soubry) and for Loughborough (Nicky Morgan), the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke), and others are here. They have been accused of not doing right by the people simply because they have been seeking to do their job in Committee. They have been accused in different quarters of being mutineers and trying to sabotage a process, when all they have sought is to do right by this country, this House and—most importantly of all—their constituents.
We do not live in a police state. This is a not a dictatorship where the freedom of speech of individuals, both outside and in Parliament, is curtailed. The House needs to send a strong message to those outside that this democracy will not tolerate Members of Parliament being threatened in the way that was outlined by the right hon. Member for Broxtowe in her point of order earlier, because that is not in keeping with British values and how we do things in this country. There are Members who whip this up, suggesting that we are somehow running against the people when we try to do our job on this Bill. Those Members are grossly irresponsible and should think about what they are doing more carefully in the future, because we have seen the results in the national newspapers today.
Alison McGovern
Does my hon. Friend agree that it is about time that we all remembered that we have more in common than that which divides us?
Chuka Umunna
Absolutely. I could not agree more with that statement.
I turn in particular to new clauses 2 and 58, which were tabled by Opposition Front Benchers. It is important that we have more than assurances—that we actually amend the Bill—to protect some of the vital rights that are currently protected in EU law. In particular, we should protect their enhanced status. It seems from the comments made by the Solicitor General and other Government Members that we are essentially being asked to give Ministers the benefit of the doubt regarding these rights, particularly the employment law rights. We are being asked to give Ministers our confidence that they will protect these rights.
Since I joined the House, I have seen the Government—first the coalition and then the current Conservative Government—ride roughshod, unfortunately, over some of the vital employment rights that people enjoy. There was the adoption of employment tribunal fees, which were thankfully struck down by the Supreme Court. The qualification period to claim for unfair dismissal has been increased since the Conservatives have been in office, and they have sought to change the statutory duties of the Equality and Human Rights Commission. In the light of that—never mind the disgraceful Beecroft report, which was commissioned by No. 10 in a previous Parliament—it is only reasonable that Opposition Front Benchers should secure amendments to the Bill to protect the enhanced status of those employment law rights.
Chris Stephens (Glasgow South West) (SNP)
Is it not important that we keep laws such as the equal treatment directive, which allowed many women, particularly in the public sector, to claim equal pay from their employer?
Chuka Umunna
Absolutely. I could not agree more. I referred to the Beecroft review, and one of its recommendations was to do away with equal pay audits, which only underlines the point I have been seeking to make.
Chuka Umunna
I am going to be quick, so I will not take any more interventions.
We have talked a lot about parliamentary sovereignty, which is why it is vital that we see changes made to the Bill, but the biggest threat to national sovereignty for many countries, particularly in the advanced world, is the power of multinational corporations in an era of globalisation. I am not opposed to those organisations per se, but they do need to be properly regulated and marshalled for the common good. However, they operate across borders, and, ultimately, if we want to regulate them properly and make them work particularly for lower and middle-income families in the advanced world—of course, people’s discontent with globalisation was primarily the thing that drove them to leave the European Union—we have to do that across borders.
Being in the EEA—being part of that framework—enables us to get the system to work better for people. If there is one thing we learned from the referendum we had in 2016, it is that they want us to change the system and better marshal it to their interests. Being in the EEA and EFTA helps to enable us to do that. That is why we should be focusing on it and why we need to pass the amendment tabled by my hon. Friend the Member for Lewisham East.
Anna Soubry
It is a great pleasure to follow the hon. Member for Streatham (Chuka Umunna). We are co-chairs of the all-party parliamentary group on EU relations; our relationship with the EU will continue. He chairs it extremely ably. I am grateful to him for the kind comments that he made at the beginning. His analysis, as ever, was absolutely spot on. For far too long, we have had far too much rhetoric and far too many insults flowing around. We have to stop the silly things that have been said about people like me, and indeed him and other right hon. and hon. Members on both sides of the Chamber, and the constant attacks. We are told that if we have the views that we have then we are remoaners who are trying somehow to thwart the will of the people and so on. It does not help and it has not helped. History will not be kind to this place when what has happened since the referendum back in 2016 is written about.
What is really interesting as we enter day two of this debate is to see Conservative Members suddenly coming over and talking to each other. People who voted leave and were very vociferous during the campaign are coming over and talking to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) where there are clear concerns on constitutional matters and on the sovereignty of this place. Conversations are held between those of both main parties and of other parties. All these things are good. This is about healing the great divide that has occurred in our party. The fact that it is happening on this side of the Chamber as well is important.
The reason that people like me get so agitated is that one moment last night was really deeply unpleasant. Some of my right hon. and hon. Friends, when they saw the electronic copy of that newspaper, were genuinely concerned and worried because they knew that they would get the sorts of emails, tweets and Facebook postings that we have had before, and we would get all that stirring up of the old antipathy of this long-running sore that has bedevilled my party in particular. It is not acceptable when people keep perpetuating these myths. As the hon. Member for Streatham says, it fuels the flames.
If nothing else, I think we can now make progress. Let us stop the rhetoric, stop accusing people like me of wanting to thwart the will of the people and accept that we are leaving. If my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) accepts that we are leaving the EU, how many times do we have to say it before all these insults stop and we make the progress that we need to make in now delivering a Brexit that benefits everybody in this country? I support new clause 22.
Kate Hoey (Vauxhall) (Lab)
I would not like the public who are listening or watching to take the right hon. Lady to mean that the abuse, nasty remarks and things that are going on are only against people who were remainers. Some of us on the other side of the argument have received a huge amount of abuse, but we sometimes think it is probably easier and better simply to ignore it.
Anna Soubry
I would love to ignore death threats, but I actually find them quite frightening. As a result, I have in the past reported at least two to the police. The courts took it very seriously, I say gently to the hon. Lady. They sent one person to prison and suspended the other person’s custodial sentence. I am glad that some people in this place take it seriously.
Peter Kyle (Hove) (Lab)
The right hon. Lady and I have had our differences during my time in Parliament since 2015, particularly when she was a Business Minister. We had some vigorous debates and disagreements when I, as a member of the Business, Energy and Industrial Strategy Committee, challenged her about the steel industry and the industrial strategy, but I felt that she was always very respectful of my view and the strength with which I held it. Why were we able to have such vigorous but respectful debate over such policy issues, but Brexit seems to bring out the very worst in public discourse in this place and beyond?
The Temporary Chair (David Hanson)
Order. I know that Members feel strongly about this subject, but we are straying slightly from new clause 2.
Anna Soubry
I am desperate to get on with supporting new clause 22 and endorsing the excellent speech made by the hon. Member for Lewisham East (Heidi Alexander). Notwithstanding the referendum result, we all need to move on. When I stood for election in Broxtowe in June, I did so on the clear platform of accepting that we were leaving the European Union but continuing to make the case for the single market, the customs union and the positive benefits of immigration.
The reason why I say that with some conviction is that if we are all very honest about it, there is unfortunately every chance that we will not get anything like the sort of trade deal that we want. I have no doubt that we will get deals on security, aviation and so on, but the harsh and uncomfortable reality is that there is very little chance that we will actually get the sort of trade deal that we need to secure our country’s future. On that basis, the only alternative at the moment seems to be to crash out with no deal. I am not criticising the Government for making preparations for that eventuality, because it would be foolish of them not to do so, but I suggest that the idea that we will have either a deal or no deal is not the way to see it. We do not have just two options; there is a third option, which is for us to continue to be a member of the EEA and a member of EFTA.
I take this view, which I base on knocking on hundreds of doors during the election campaign and continuing to talk to my constituents when I go out leafleting and so on. I think that most people in the real world are absolutely fed up with all this. They have had enough of us all squabbling and moaning and groaning. It is unpleasant, and people are sick and tired of it. I think they take the view, “Look, you have all been elected to this place, and you have got a Government in place. For goodness’ sake, just get on and do it.” Now let us have a debate about what “it” is and how we do it for the very best in our country. Let us have that sort of debate. I think that we will be criticised for the fact that it has taken us so long to have that debate.
Mr Ben Bradshaw (Exeter) (Lab)
Does the right hon. Lady agree that the debates that we are having could be helpful to the Government? The Government are much more likely to be able to “do it”, as she puts it, if they reflect the consensus view of opinion across the House.
Anna Soubry
I completely agree with the right hon. Gentleman. I go on about what history will write about this place, and one of the observations of history will be the lack of debate until almost this point, which does us no credit. Another will be that at least two thirds, I reckon, of the people elected to this place are of the same view on the customs union and single market.
Angus Brendan MacNeil
The right hon. Lady is making some very good arguments, which chime with the SNP’s position. The difficulty is that the Conservative party and the main Opposition Labour party have the same policy; they are both wedded to leaving the single market and leaving the customs union. Unfortunately, parliamentary arithmetic is against us in this matter, and that situation is taking the UK over the cliff edge.
Anna Soubry
I am not going to adopt the hon. Gentleman’s tribal language, because I am trying to build a consensus. I understand why Conservative Front Benchers find themselves in the position that they are in. Equally, I understand the difficulties that the Labour party has. The simple, harsh reality is that people from all parties voted both leave and remain.
One of our biggest problems when we try to resolve this issue is immigration. We need to have a proper debate about immigration and make the positive case for it. We need to explain that there is not a small army of people sitting at home, desperate to work in the fields of Lincolnshire and Kent or in the food processing factory in my constituency, for example. We need to explain that people come to our country to work and that we would be lost without them—not just in the fields or the factories, as I described, but in our great NHS.
I have been speaking to businesses, as many of us do, and the facts I am told are that many of our manufacturers have seen a 10% decline in the number of workers from the European Union and that they cannot find people in our country to replace them. This is serious stuff—I do now want to digress and get into the arguments about immigration—and it is our job as politicians to lead such arguments. We have previously discussed the proud history of those on both sides of the House in leading on social change, and we as politicians have an absolute duty to make such a case.
Wera Hobhouse
Does the right hon. Lady not agree that what we are really discussing is democracy and how we interpret it? As much as I agree that the language has sometimes gone overboard and been very unpleasant for some of us, we are grappling with this because democracy is a very difficult issue.
Anna Soubry
The hon. Lady may well be right. I am trying to find solutions. I am trying to find a way to get the best solution for everybody in our country, while putting the economy at the heart of this.
The joy of remaining in the EEA, and indeed in EFTA, is that it is a model sitting on the shelf that can be taken down, dusted off and perhaps tweaked here and there. The benefit for the great British people is that—hallelujah!—the job will pretty much be done, and it will enable our Government to get on with the great domestic issues that we must address. It certainly means there will be a “Hoorah!” right across businesses in this country, because it will give them the certainty and the continuity for which they are desperate, and it will deliver economic benefits. There is not much else to say, but if it is pressed to a Division, I will certainly vote for new clause 22.
Tom Brake
There are certainly several amendments in the group that I will support, if they are pressed to a Division. I very much welcome new clause 55, which was tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve) and relates to enhancing scrutiny. That is clearly something that we need, as it was much debated on Second Reading, and is now being discussed in Committee. If new clause 22, which was tabled by the hon. Member for Lewisham East (Heidi Alexander), is subject to a vote, we will certainly support that.
I welcome the return of the right hon. Member for Witham (Priti Patel), who is clearly making herself the standard bearer for Brexiteers on the Back Benches. I am sorry that she is no longer in the Chamber, but she said in her speech that Brexit was not about cutting regulations. However, that does not quite sit with what she has said previously about Brexit being an opportunity for widespread deregulation. I am afraid I must ask why we should believe what Government Front Benchers are now saying about their intentions when many members of the Cabinet, Ministers and Back Benchers are on record as stating very clearly that Brexit will provide opportunities for deregulation. Members will be pleased to hear that I will make only some brief remarks.
Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)
I seem to recall it was not so long ago that the right hon. Gentleman was in a coalition Government in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) insisted that we withdrew two regulations for every new one that we introduced. Does not that make the right hon. Gentleman a regulation cutter, like the rest of us?
Tom Brake
I remember that clearly. The right hon. Gentleman and I—and, I am sure, Labour Members—can confirm that there are regulations, such as those relating to the British Government’s role in running the railways in India, that it would be appropriate to get rid of, because frankly they are no longer relevant. I suspect that there are quite a lot of other examples.
I want to focus briefly on the EEA. At the start of the referendum campaign, those involved in the leave campaign advocated the Norway model. As it became clearer to them that that was not what they wanted, they moved on to the Switzerland model, with its 150 or so different agreements. Once they realised that that was quite complex, Peru emerged as the model they wanted to emulate, before they eventually settled on the idea of a bespoke deal. As we heard earlier, no one anywhere is willing to identify how such a bespoke deal would work or, indeed, whether it is even possible to put one together.
As other Members have said, it is clear that membership of the EEA does not in any way, shape or form match the benefits we get from being members of the European Union. It might provide an alternative—a step down from our current position, but without the consequences of our leaving completely—to the no-deal scenario. It is a poor substitute, but it is better than no deal. It would keep us in the single market but out of the customs union, and—this major sticking point was, I think, the reason why the leave campaign moved away from the Norway model—it would probably require a financial contribution. It would allow trade deals to be struck, so there are some advantages to it, which is why we will support new clause 22 if it is pressed to a vote.
I want to finish by focusing on the question of whether leaving the European Union automatically means that we also cut our links with the EEA. Articles 126 and 127 of the EEA agreement have already been mentioned. I have been involved in an interesting exchange of parliamentary written questions and answers about the EEA. When I asked what was required to formally withdraw from the EEA agreement, the parliamentary answer stated:
“As the Secretary of State for Exiting the European Union said when he addressed the House on 7th September, there is agreement that when we leave the EU, the European Economic Area Agreement will no longer operate in respect of the UK.”
I followed that up by seeking to identify who that agreement was with and why that would happen. The response stated:
“It is Government policy that we will not be a member”,
so it seems as though the Government have reached an agreement with themselves that we will automatically be out of the EEA. I would suggest that that is not a particularly high bar. Although article 126 makes it clear that we will leave the EEA, article 127 requires us to give notice in order to do so.
As an aside, if we are leaving the EEA, it would probably be courteous for the UK Government to at least talk to its other members, particularly EFTA members, just so that they are aware that that is what we are doing. As of last week, no contact had been made with at least one of the EFTA members. It might be appropriate for the Government to inform them as a matter of courtesy.
New clause 22 is very good, as it would provide us with an opportunity to keep some of the benefits of our EU membership without crashing out of the EU completely, and without seeking the mythical bespoke deal that I do not think anyone believes can be delivered in the timescales that the Government have to work towards. I look forward to the vote on that new clause.
Alex Cunningham (Stockton North) (Lab)
I want to speak to new clause 58 and to cover the key issue of EU pension directives, specifically versions one and two of the institutions for occupational retirement provision directive.
Both versions set out the broad framework for pension fund operation in the EU, concentrating on structures and procedures such as the separation of the fund from the employer, giving strong protection for scheme members, and the establishment of a regulator in each member state. My concerns relate to the effect of IORP II on the running of pension schemes and the Government’s approach to the requirement for legal separation of a pensions institution from the sponsoring employer under article 8 of the directive, and to investment regulations under article 19 that require assets to be invested prudently in the best interest of scheme members, and for any potential conflict of interest to be resolved in the member’s favour.
Principally, I seek an assurance that the Government will introduce legislation for the transposition of IORP II and that they will not seek to opt out of any of the relevant articles but implement them in full. That is particularly important for members of the local government pension scheme, as there remains some confusion in the public domain over whether IORP I was ever applied to it in full.
When IORP I is succeeded by IORP II, the Government could disapply any requirement for separation, as well as any requirement for investment in accordance with a “prudent person” rule. What lies at stake here are the statutory rights of more than 5 million citizens who participate in the UK local government pension scheme. They should not be undermined by virtue of past decisions, or indeed as a result of our leaving the EU. This is made even more important by the proximity of the deadline for IORP II to the date of exit from the EU. I hope that Ministers will confirm that the Government will ensure the necessary measures—articles 8 and 19—are enshrined in UK law.
I now turn to the state pension. As a result of our EU membership, the UK is part of a system to co-ordinate the social security entitlements of people moving within the EU. That system enables periods of insurance to be aggregated, meaning that an individual who has worked in other member states can make one application to the relevant agency in the country of residence. In the UK, that is the International Pension Centre. That relevant agency then notifies details of the claim to all countries in which the person has been insured, and each member state calculates its pro-rata contribution and puts that amount into payment.
The UK state pension is payable overseas, but it is uprated only if the pensioner is in an EEA country, or one with which the UK has a reciprocal agreement for uprating. In September, the Government suggested that reciprocal arrangements would be protected following exit from the European Union, and that is also included in the joint paper on citizen’s rights. Will Ministers confirm that that will continue to be the case, and that the Government will not be seeking to enter individual reciprocal arrangements after our exit from the European Union, but will instead continue to work on the basis of current arrangements?
Stephen Kinnock
I would like to speak in favour of new clause 2 and new clause 58, which have been tabled by those on the Labour Front Bench.
There is an idea that we should be giving the Government the benefit of the doubt on these issues. There have, however, been so many statements and acts from those on the Government Benches to undermine employment rights, from the Trade Union Act 2016 to many other measures, that we need to ensure we anchor the rights of our workforce in the Bill.
The Exiting the European Union Committee met Mr Barnier in Brussels last week. One point he made very clearly is that as we move towards a future relationship, the so-called deep and comprehensive free trade agreement will need to be ratified by the Parliaments of the member states, plus a number of regional Parliaments. They will not accept anything that he described as “social dumping”—they will not accept undercutting and they will not accept unfair regulatory practice—so if the Government are serious about getting a deep and comprehensive free trade agreement with the EU they will have to recognise that regulatory equivalence will have to be a critical part of it. This is about not only securing rights in this country, but the economic interests of the country if we are serious about having that future relationship.
Mr Kenneth Clarke
I entirely endorse what the hon. Gentleman says about a free trade agreement with the European Union requiring regulatory equivalence. Actually, this is not a uniquely European thing or a malicious Brussels proposal. Modern trade agreements in a globalised economy all depend, more than anything else, on mutual recognition or regulatory convergence in the sectors where free trade is going to be allowed.
Stephen Kinnock
The right hon. and learned Gentleman is, as always, absolutely correct. We need to recognise the umbilical cord connecting the regulatory playing fields to the trade agreements because of the nature of unfair competition and unfair practice. None of the EU member states will accept such agreements without that. What was particularly interesting about what Mr Barnier said was that the comprehensive trade discussions will be on the basis of article 218 of the treaty, which requires ratification by 27 member state Parliaments and eight regional Parliaments. The level of scrutiny, therefore, will be even greater under the future relationship than under the transitional relationship, which we know will be a carbon copy of the status quo, including on ECJ jurisdiction. I think the Government have accepted that, although there seems to be an attempt to wriggle out of some aspects. The fact remains, however, that a transition deal will be a carbon copy of the status quo.
Sir William Cash
I would be grateful if the hon. Gentleman could explain how often, and in what circumstances, the arbitration court has departed from the decision making and precedence of the ECJ.
Stephen Kinnock
This is a clear case of a “before and after” conversation. The court would be substantially altered were the UK to have judges on it. It would be a category shift in the role of the court. It would require negotiation, of course, but I am offering an opportunity to square the circle in terms of the many contrasts, conflicts and competing agendas around the delivery of a Brexit that works for the whole country and delivers for the millions of people who voted in the referendum and who are not ideologues on one side or the other. They want this Parliament to get on with the job and to deliver a Brexit that works for the whole country, and indeed helps to reunite our country. In that spirit, new clause 22 is so important and offers so much.
There is much conversation about models. The Canada model does not include services, while the Ukraine model is new and untested. The EEA-EFTA model is well established and well understood. It would give our business community and our economy the certainty that they so desperately need.
Sir Desmond Swayne (New Forest West) (Con)
Will the hon. Gentleman give way?
Stephen Kinnock
I will not, as so many Members want to speak. I am afraid that I must make progress.
I want to close my remarks by saying that we are in a hiatus that is deeply damaging to the British economy. We are drifting and rudderless. We are floating in a mist of ambiguity and indecision on the part of the Government, because they refuse to set out the road map to our future relationship. We know that there is not time to do that bespoke deal and that we need a well established and well understood deal off the shelf. We also know that it is necessary to trigger article 127 of the EEA agreement to leave the EEA, because we signed up to that agreement as a single and sovereign contracting party.
Legal opinion is divided on the issue. Therefore, it becomes political. It is time for the House to show some leadership, have the debate about our future relationship with the single market and take back control in this sovereign Parliament. I therefore commend new clause 22 to the Committee.
Caroline Lucas
I rise to welcome and support a number of proposals in this group, in particular new clause 2, new clause 25, the amendments on the EEA and new clause 22.
I shall be brief because many others wish to speak. First, new clause 22 seems to me to be eminently reasonable and, in a sense, asks no more from Ministers than they have already pledged verbally. Call me suspicious, but I would like to see that locked down legally as well, but it goes no further than what they have already said.
Indeed, the new clause reflects repeated statements by Ministers, not least the Secretary of State for Exiting the European Union, that the UK’s withdrawal from the EU will not lead to a weakening or a dilution of workers’ rights in particular. In October 2016, the Prime Minister herself said that
“existing workers’ legal rights will continue to be guaranteed in law”.
The same month, the Secretary of State for Exiting the European Union said this:
“To those who are trying to frighten British workers, saying ‘When we leave, employment rights will be eroded’, I say firmly and unequivocally ‘no they won’t’… this… government will not roll back those rights in the workplace.”
The Secretary of State for Environment, Food and Rural Affairs has said that he wants not just to maintain environmental laws, but to enhance them. It is puzzling why there is still resistance to translating all that rhetoric into legal certainty. That is all we seek this afternoon.
Those and other more recent statements are welcome, because in June 2016 electors were not voting to jettison hard-won rights and legal protections. On the contrary, they were assured by the leave campaign that taking back control would mean improvements to their rights and legal protections, denied them, apparently, by the evil bureaucrats of the EU. However, the Bill risks retained EU law being vulnerable to chipping away through secondary legislation. That is a real concern and those are important protections. Furthermore, if we are to have that deep and special relationship with the EU27, in particular in trade, we will have to abide by those regulations in any case, so why not lock them down with certainty here and now in this debate?
New clause 25, which was tabled by the hon. Member for Bristol East (Kerry McCarthy), again asks little of Ministers. I hope it will be accepted. It would simply ensure that the quite extraordinary delegated powers that the Bill grants be used only in pursuit of the Bill’s stated purpose—namely, to allow retained EU law to operate effectively after withdrawal.
As the Bill stands, it will allow Ministers to use those delegated powers to modify what are currently EU regulations. That simply does not provide a good enough guarantee that those delegated powers will not be used to water down EU-derived standards on key environmental safeguards—for example, on chemical and timber regulation—without proper parliamentary and public scrutiny. New clause 25 would address that weakness by establishing a new process for modifying retained EU law after Brexit—one that I believe strikes a better balance of powers—and it acknowledges that it is sometimes necessary to amend technical provisions using secondary legislation. It allows for that, but it would also ensure that more substantive modifications to retained EU law can only be made by an Act of Parliament.
I want to say a few words about the amendments on the EEA. I simply want to reinforce what other hon. Members have said—that while the EEA might not be the most ideal port for a ship seeking shelter from the worst of the Brexit storm, because by almost any standard EEA membership is clearly inferior to full membership of the EU, when the storm is bad sailors can nevertheless be glad to find shelter in any available port, and with the sand now running fast out of the article 50 hourglass, one would have thought that any strong and stable Government worthy of the name would want to keep their options open.
Membership of the EEA would at least allow the UK to retain access to the EU single market. That means that British citizens would still be able to live and work in EU member states. British businesses would have the certainty of being able to trade freely with countries in the EU single market and access that market’s more than 500 million consumers. It would mean as well that the NHS would not be facing the crisis that it is currently facing, with so many nurses and health workers now being put off from coming to work in our NHS because they are no longer welcome. It means that we would not have the crisis in agriculture, where we literally have crops rotting in the fields because we do not have workers here to actually do the work in those fields. Crucially, it would also mean that those EU citizens who have made their lives here in good faith, and who have paid their taxes and worked here alongside us as our family, our friends and so on, would not feel unwelcome in a country that has been their home, in some cases for decades and decades.
Caroline Lucas
I feel ashamed of this country and of this Government when I see so many good people feeling so unwelcome and feeling that their only recourse is to leave this country. That is not right.
I believe that membership of the EEA is a compromise that we might look at, going forward. I commend very strongly the speech and the amendment from the hon. Member for Lewisham East (Heidi Alexander). She made the incredibly powerful point that we have had so much rhetoric about pulling together, about not dividing society, and yet EEA membership would offer a compromise that perhaps people could gather around. There was no mandate on the ballot paper on 23 June for the kind of extreme Brexit that this Government are pursuing, pushing us potentially to the very edge of that cliff and beyond. That was not on anyone’s ballot paper. There is no mandate for that. So if there is to be any seriousness about bringing people together, to try to heal the deep rifts that there now are in this country, proposals of the type set out in new clause 22 will be vital.
Alison McGovern
I represent a fairly finely balanced constituency. Many of my constituents voted leave and many voted remain. In view of that, I approached the election in June with some trepidation because I thought, “How do you bring people together in an area where many have opposing views?” But it turned out to be fairly straightforward. I told them what I thought we could do to get a deal done. The priority of those who voted leave was to get it done, so that we could move on. They want to leave the European Union but they do not want the process to be dragged out. Those who voted remain just want stability, and I think new clause 22 would provide that, as others have said.
Of course, the nub of new clause 22, which I will focus my remarks on, is not whether we ought to remain a member of the EEA or not; it is who has the right to choose whether we should stay in the single market or not. The Minister said earlier that this discussion was not about policy; it was about powers. Well, I know that, but the problem is, I am worried about what the policy will be unless we make sure that the powers reside in this House.
I want to make a couple of remarks about just how crucial that membership of the single market is. I do not really belong in this debate—I am not a lawyer; I am not from a legal background. I tend to focus my thinking on the economic fortunes of my constituents above all else. But the problem is that the legal discussion will govern the economic fortunes of my constituents above all else, and that is why we have to focus on the kind of Brexit we actually want. Do we want to remain in a European family of trading nations, or not? Do we want to keep our terms and our trade with our partners, or not? This is the choice before us. Do we think that some kind of free trade agreement will offer us enough to keep our constituents in their jobs, or do we need the surety of the single market? Let me make three brief points about why it is obvious that the EEA is the answer, and why we must have the power to decide.
Sir William Cash
The two “retained enhanced protection” new clauses tabled by the Leader of the Opposition are inconsistent. The hon. Member for Greenwich and Woolwich (Matthew Pennycook) did not refer in his speech to the fundamental rights as being part of new clause 2 itself. When I compared the two new clauses, I saw considerable inconsistencies. For example, new clause 58, entitled “Retaining Enhanced Protection (No. 2)”, includes the word “repeal”, and the words “environmental standards and protection” are included in new clause 58 but not in new clause 2. That presents a problem, because, as far as I understand the position, it is possible to debate and vote only on the new clauses in question. Which will Members vote on, if they do vote? I think it important to put that on the record, because there are serious inconsistencies between the two.
There has been a great deal of metaphysical discussion about the whole question of retained law. Let me say to those who have not had the benefit of doing so that it is quite useful to read pages 52 to 58 of the House of Commons briefing. It saves a lot of time, including debating time.
Jack Dromey (Birmingham, Erdington) (Lab)
The Government say, “Trust us, workers’ rights are safe.” As someone who has fought for workers’ rights for 40 years, rising from being a lay member to ultimately being elected deputy general secretary of the Transport and General Workers Union, I have seen often implacable hostility from Tory Governments towards workers and their trade unions in every decade since we joined the EU, ranging from when we were described in the 1980s as the “enemy within” to, more recently, the Trade Union Bill 2015.
In the referendum campaign, what the wide-eyed Brexiteers now driving the Government would like to see in our country could not have been clearer. The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) pledged to “whittle away” the regulation “burden” with its
“intrusions into the daily life of citizens.”
Lord Lawson called for a “massive” regulatory cull. The ex-International Development Secretary, the right hon. Member for Witham (Priti Patel), said:
“If we could just halve…the EU social and employment legislation we could deliver a £4.3 billion boost to the economy.”
Indeed, the previous Prime Minister talked about killing off the safety culture. Anyone who had stood outside Wembley stadium with 1,000 workers mourning the death of somebody who had just been crushed at work would not talk about killing off the safety culture. And the Foreign Secretary said during the Brexit campaign that the weight of employment legislation is now “back-breaking” and that his preferred model is to scrap the social charter.
I do not doubt for one moment that there are truly honourable Members on the Conservative Benches who mean it when they say that workers’ rights will be safe; the question is how we safeguard that in the next stages.
Let me tell just one story showing why this matters—why European Union law mattered to British workers, and, crucially, why it matters that we get it right to protect workers’ rights as we leave the EU. In 1977 the EU legislated for the acquired rights directive, and our Government had to introduce it into domestic law. Eventually it was introduced, with gritted teeth, in 1983, with William van Straubenzee saying in the House that he did so “with the utmost reluctance.” But the Tories then excluded the public sector; 10 million public servants were excluded for 10 years. The price that was paid, as we saw mass privatisation throughout the 1980s, was catastrophic for workers.
I remember the first example I dealt with, at the Fire Training College at Moreton-in-Marsh: 120 predominantly women housekeepers and catering workers had their pay cut by a third and the numbers employed cut by a half, holiday entitlement cut, and sickness entitlements cut. The only humorous side of an otherwise sad story was that the managing director of Grand Met Catering which won the contract was—I kid thee not—none other than a Mr Dick Turpin.
These situations went on for year after year. Let me give another example. My uncle Mick, God rest his soul, was a street-cleaner. He lived with me when I was a kid. He worked for Brent Council. I will never forget when Brent street-cleaners and refuse collectors were facing privatisation. During a meeting in their canteen one morning, the street-cleaners sat together, many of them disabled workers, in fear of what would happen because they knew that the bids coming in would result in a third of the workforce going, and they might be the most likely to go. I remember that my Uncle Mick’s good friend—a single man living alone—collapsed in tears afterwards at the thought of what loomed before him. There was 10 years of that throughout the 1980s.
I then took the case of the Eastbourne dustmen to the European Court of Justice and the European Commission, and we won. Thanks to EU law, our Government were forced to extend TUPE to cover 10 million public servants. It is vital in the next stages that there can never be any going back.
Time does not permit me to talk about other examples of implacable hostility: GCHQ, the refusal to sign the social charter, the national minimum wage, employment tribunal fees and the Trade Union Bill.
In conclusion, I stress again that I draw a distinction between the many Government Members who mean what they say and those who are in the driving seat, taking us ever closer to the cliff edge. When they say, “Trust us,” say no. That is why my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) was right to table new clauses that would safeguard workers’ rights as best we can. We cannot delegate to future Conservative Governments—if they still exist—the ability to change workers’ rights by way of Henry VIII powers, so that they can say, “Off with their heads.” On each and every occasion, as my hon. Friend argued, workers deserve the enhanced protection of any changes to their rights after we leave the European Union coming back to Parliament for debate, and changes being made only by an Act of Parliament. Is that ideal from my point of view? No, but it is at least a damn sight better than relying on Henry VIII powers in the hands of the Foreign Secretary—or who knows who?—at the next stage.
Matthew Pennycook
I know how many speakers have put in for the next debate, so I will be brief. It has been a good debate with many thoughtful contributions from both sides of the Committee, and I genuinely welcome the Solicitor General’s constructive tone. I also welcome the guarantee that, whether amendments are passed or not, we will have a Report stage. That suggests to me that, as we have long suspected, the Government draftsmen are busily at work.
However, on the central purpose of new clause 58—the need to secure enhanced protection for retained EU law from secondary legislation contained in other Acts of Parliament—the Minister offered no meaningful concessions. As such, I will test the will of the Committee on that matter when the time comes, but I will not press new clause 2 to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 25
Treatment of retained law
“(1) Following the commencement of this Act, no modification may be made to retained EU law save by primary legislation, or by subordinate legislation made under this Act.
(2) By regulation, the Minister may establish a Schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Regulations made under subsection (2) will be subject to an enhanced scrutiny procedure including consultation with the public and relevant stakeholders.
(4) Regulations may only be made under subsection (2) to the extent that they will have no detrimental impact on the UK environment.
(5) Delegated powers may only be used to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of environmental protection.”—(Kerry McCarthy.)
This new clause provides a mechanism for Ministers to establish a list of technical provisions of retained EU law that may be amended by subordinate legislation outside of the time restrictions of the Bill.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Temporary Chair (David Hanson)
With this it will be convenient to discuss the following: Non-discrimination on ground of nationality Article 18 Citizenship rights Article 20 (except article 20(2)(c)) Rights of movement and residence deriving from EU citizenship Article 21(1) Establishes customs union, prohibition of customs duties, common external tariff Article 28 Prohibition on customs duties Article 30 Prohibition on quantitative restrictions on imports Article 34 Prohibition on quantitative restrictions on exports Article 35 Exception to quantitative restrictions Article 36 Prohibition on discrimination regarding the conditions under which goods are procured Article 37(1) and (2) Free movement of workers Article 45(1), (2) and (3) Freedom of establishment Article 49 Freedom to provide services Article 56 Services Article 57 Free movement of capital Article 63 Competition Article 101(1) Abuse of a dominant position Article 102 Public undertakings Article 106(1) and (2) State aid Article 107(1) Commission consideration of plans re: state aid Article 108(3) Internal taxation Article 110 Non-discrimination in indirect taxes Articles 111 to 113 Economic co-operation Articles 120 to 126 Equal pay Article 157 European Investment Bank (EIB) Article 308 (first and second sub-paragraphs) Combating fraud on the EU Article 325(1) and (2) Disclosure of information and national security Article 346 EIB Protocol 5 - Articles 3, 4, 5, 7(1), 13, 15, 18(4), 19(1) and (2), 20(2), 23(1) and (4), 26, 27 (second and third sub-paragraphs) Privileges and immunities of the EIB Protocol 7 - Article 21”.
New clause 60—Retention of principles of EU environmental law—
‘(1) On and after exit day the environmental principles of European Union law become principles of United Kingdom law in accordance with this section.
(2) The “environmental principles of EU law” are the principles set out in Article 191 of the Treaty on the Functioning of the European Union (the precautionary principle; the principle that preventive action should be taken; the principle that environmental damage should as a priority be rectified at source and that the polluter should pay).
(3) A court or tribunal interpreting or applying an enactment must, so far as it is possible to do so, construe or apply the enactment in a manner that is compatible with the environmental principles of EU law.
(4) A public authority must, in the exercise of its functions, have regard to the environmental principles of EU law.’
This new clause would ensure that after withdrawal from the EU, the environmental principles of EU law would be retained as part of UK law.
New clause 67—Environmental protection: principles under Article 191 of TFEU—
‘(1) Principles contained in Article 191 of TFEU in relation to environmental protection and listed in subsection (2) shall continue to be recognised and applied on and after exit day.
(2) The principles are—
(a) the precautionary principle as it relates to the environment,
(b) the principle that preventive action should be taken to avert environmental damage,
(c) the principle that environmental damage should as a priority be rectified at source, and
(d) the principle that the polluter should pay.’
This new clause would ensure that environmental principles under Article 191 of the Treaty on the Functioning of the European Union would continue to apply in the UK after exit day.
Amendment 93, in clause 4, page 2, line 45, leave out sub-paragraph (b).
The test set out at Clause 4(1)(a), that such rights are available in domestic law immediately before exit day, is sufficient for those rights to continue to be available following the UK’s exit from the EU.
Amendment 70, page 2, line 47, at end insert—
‘(1A) Rights, powers, liabilities, obligations, restrictions, remedies and procedures under subsection (1) shall include directly effective rights contained in the following Articles of, and Protocols to, the Treaty on the Functioning of the European Union—
Amendment 148, page 2, line 47, at end insert—
‘(1A) Rights, powers, liabilities, obligations, restrictions, remedies and procedures under subsection (1) shall include directly effective rights and obligations contained in the United Nations Convention on the Rights of the Child.”
This amendment would seek to preserve after exit from the EU any rights or obligations arising from the United Nations Convention on the Rights of the Child which applied in UK domestic law by virtue of its membership of the European Union.
Amendment 94, page 3, line 4, leave out paragraph (b).
Clause 4(2)(b) excludes rights arising under EU directives which are not recognised by the courts. This Amendment would remove Clause 4(2)(b) so that rights arising under EU directives (but not yet adjudicated on by the courts) are protected and continue to be available in UK courts.
Amendment 95, page 3, line 9, at end insert—
‘(4) Where, following the United Kingdom’s exit from the EU, no specific provision has been made in respect of an aspect of EU law applying to the UK or any part of the United Kingdom immediately prior to the United Kingdom’s exit from the EU, that aspect of EU law shall continue to be effective and enforceable in the United Kingdom with equivalent scope, purpose and effect as immediately before exit day.
(5) Where, following the United Kingdom’s exit from the EU, retained EU law is found to incorrectly or incompletely transpose the requirements of EU legislation in force on exit day, a Minister of the Crown shall make regulations made subject to an enhanced scrutiny procedure so as to ensure full transposition of the EU legislation.”
New subsection (4) deals with a situation where the UK has incorrectly implemented a directive. In cases of incorrect implementation, reliance on the EU directive may still be necessary. New subsection (5) would ensure that where the UK has not correctly or completely implemented EU law, prior to exit day, there will be a statutory obligation on Ministers to modify UK law to ensure that the relevant EU legislation is correctly and fully implemented.
Clause 4 stand part.
Amendment 149, in clause 7, page 6, line 18, at end insert—
“(g) make any provision which is not compliant with the United Nations Convention on the Rights of the Child.”
This amendment would seek to bar Ministers from making regulations under Clause 7 which are not compliant with the United Nations Convention on the Rights of the Child.
Amendment 350, page 6, line 18, at end insert—
“(g) fail to pay full regard to the welfare requirements of animals as sentient beings.”
This amendment holds Ministers to the animal welfare standards enshrined in Article 13 of the Treaty on the Functioning of the European Union.
Amendment 150, in clause 9, page 7, line 8, at end insert—
“(e) make any provision which is not compliant with the United Nations Convention on the Rights of the Child.”
This amendment would seek to bar Ministers from making regulations under Clause 9 which are not compliant with the United Nations Convention on the Rights of the Child.
New clause 34—United Nations Convention on the Rights of the Child—
‘(1) On exit day and on any day afterwards, a public authority must act in a way which is compatible with—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(2) So far as it is possible to do so, on exit day and on any day afterwards, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(3) On exit day and on any day afterwards, a Minister of the Crown must, when exercising any function relating to children, have due regard to the requirements of—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(4) A Minister of Crown shall undertake and publish a Child Rights Impact Assessment if the function relating to children under subsection (3) entails any of the following—
(a) formulation of a provision to be included in an enactment,
(b) formulation of a new policy, guidance or statement of practice, or
(c) change or review of an existing policy guidance or statement of practice.’
This new clause would require Ministers and public authorities, from exit day onwards, to act in such a way as to comply with the United Nations Convention on the Rights of the Child, and the optional protocols to which the UK is a signatory state.
New clause 36—United Nations Convention on the Rights of the Child (No. 2)—
‘(1) On exit day and on any day afterwards, a public authority must act in a way which is compatible with—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(2) So far as it is possible to do so, on exit day and on any day afterwards, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.
(3) On exit day and on any day afterwards, a Minister of the Crown must, when exercising any function relating to children, have due regard to the requirements of—
(a) Part I of the United Nations Convention on the Rights of the Child, and
(b) the Optional Protocols of the UNCRC to which the UK is a signatory state.’
This new clause would require Ministers and public authorities, from exit day onwards, to act in such a way as to comply with the United Nations Convention on the Rights of the Child, and the optional protocols to which the UK is a signatory state.
New clause 28—General Environmental Principles—
‘(1) In carrying out their duties and functions arising by virtue of this Act, public authorities must have regard to and apply the principles set out in this section.
(2) Any duty or function conferred on a public authority must be construed and have effect in a way that is compatible with the principles in this section and the aim of achieving a high level of environmental protection and improvement of the quality of the environment.
(3) The principles in this section are—
(a) the need to promote sustainable development in the UK and overseas;
(b) the need to contribute to preserving, protecting and improving the environment;
(c) the need to contribute to prudent and rational utilisation of natural resources;
(d) the need to promote measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change;
(e) the precautionary principle as it relates to the environment;
(f) the principle that preventive action should be taken to avert environmental damage;
(g) the principle that environmental damage should as a priority be rectified at source;
(h) the polluter pays principle;
(i) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities, in particular with a view to promoting sustainable development.
(j) the need to guarantee participatory rights including access to information, public participation in decision making and access to justice in relation to environmental matters.
(together the “environmental principles“).
(4) In carrying out their duties and functions, public authorities shall take account of—
(a) available scientific and technical data;
(b) environmental benefits and costs of action or lack of action; and
(c) economic and social development.
(5) Public authorities, shall when making proposals concerning health, safety, environmental protection and consumer protection policy, take as a base a ·high level of protection, taking account in particular of any new development based on scientific facts.
(6) Subsection (7) applies in any proceedings in which a court or tribunal determines whether a provision of primary or subordinate legislation is compatible with the environmental principles.
(7) If the court is satisfied that the provision is incompatible with the environmental principles, it may make a declaration of that incompatibility.
(8) In formulating and implementing agriculture, fisheries, transport, research and technological development and space policies, public authorities shall pay full regard to the welfare requirements of animals as sentient beings, while respecting the administrative provisions and customs relating in particular to religious rites, cultural traditions and regional heritage.’
This new clause ensures that public authorities carrying out their duties arising by virtue of this act, must have regard to environmental principles currently enshrined in EU law.
Caroline Lucas
I am pleased to speak in support of new clause 30, which is in my name and those of many other hon. Members, as well as new clause 60 and amendments 93 to 95. I am hopeful of finding support across the House for new clause 30, on animal sentience, because I do not think it should be controversial.
By way of background, in 1997—20 years ago—the UK Government, during their presidency of the EU, convinced the then 14 other member states that EU law should explicitly recognise that animals were sentient beings, and not simply agricultural goods like bags of potatoes that could be maltreated with impunity. In other words, it was a recognition that, like us, animals are aware of their surroundings; that they have the capacity to feel pain, hunger, heat and cold; and that they are aware of what is happening to them and of their interaction with other animals, including humans.
The resulting protocol, which came into force in 1999, changed how animals were regarded and ensured that future EU legislation was not implemented on the basis of the lowest standards of animal welfare, but that it took animal sentience into account. That understanding has since informed more than 20 pieces of EU law on animal welfare, including the ban on sealskin imports, the ban on conventional battery cages and the ban on cosmetics testing on animals.
In 2009, the original protocol was incorporated into the Lisbon treaty as article 13 of title II. The Government have rightly and commendably committed to transferring all existing EU law on animal welfare into UK law under the Bill, but because the text of the Lisbon treaty is not transferred by the Bill, the wording of article 13 on animal sentience will not explicitly be incorporated into UK law. As things stand, despite having one of the longest-standing animal welfare laws in the world—something of which we are rightly proud—the UK has no legal instrument other than article 13 of the Lisbon treaty to provide that animals are sentient beings.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
EU laws on animal sentience have allowed Wales to lead the way on animal welfare. When Plaid Cymru was in government, for instance, we banned the use of electric shock collars on cats and dogs. Does the hon. Lady agree that as well as explicitly incorporating the wording of article 13 on animal sentience into UK law, the UK Government should not hinder or stifle any future progress on animal welfare in Wales by dictating what it can and cannot do in areas of devolved competence?
Caroline Lucas
I thank the hon. Lady for her intervention, and I absolutely support what she says. Last night, I proudly went through the Lobby on amendment 79, which would have given the devolved Administrations more of a say on the Brexit process.
Sir Edward Leigh (Gainsborough) (Con)
We in this country are of course well known throughout Europe as a nation of animal lovers. The hon. Lady was kind enough to say that we started off this whole process. Once we leave Europe, will she join us in ensuring that in our own laws we have the best animal welfare protection in the world?
Caroline Lucas
As a passionate animal rights and animal welfare campaigner, I obviously want the best possible animal welfare laws in this country and in all countries, and I will not diminish my commitment to that.
I simply want to say that the omission in not transferring this bit of EU law into UK law—I understand why it cannot be transferred directly—is something that we could very easily rectify. As I say, I do not expect anyone to find any great controversy in doing so. New clause 30 is simply seeking to make sure that we close that gap. I am not for a moment suggesting that the result of our not closing it would be that we all suddenly went out and started murdering kittens—no one is suggesting such a thing—but I am saying that this is an important protocol. It was important enough for the British Government to use all their influence in the EU to have it included in the Lisbon treaty, and we should continue to have it in UK law.
