The Lord Chancellor and Secretary of State for Justice (Mr David Lidington)

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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

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I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

Mr Lidington

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I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).

Mr Lidington

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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 Lidington

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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—

Mr Lidington

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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 Lidington

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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 Lidington

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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.

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)

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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.

Mr Baker

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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.

Mr Baker

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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 Baker

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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 Baker

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Indeed. I have often thought that the scenery of our constitution had remained in place throughout my lifetime, but not the practical effect the electors of this country expected it to have.

Mr Baker

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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.

Mr Baker

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I am happy that we have announced the withdrawal agreement and implementation Bill, which will follow in due course, to establish that legal basis, but for the moment I want to conclude this section of my remarks and move on to the amendments.

Mr Baker

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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

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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.

Mr Baker

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I am most grateful to the right hon. Gentleman. He has made his case well, of course, but we will move the amendment that we have tabled.

Mr Baker

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I will give way once more, and then I will make some progress.

Mr Baker

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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.

Mr Baker

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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.

Mr Baker

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I forget for the moment whether the hon. Lady voted for the triggering of article 50, but the House did trigger article 50, and the process is quite clear: two years after that, we leave the European Union.

Mr Baker

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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.

Mr Baker

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I will give way just once more, to one of the Members behind me, and then I will make progress. I give way to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), my beloved neighbour.

Mr Baker

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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.

Mr Baker

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I did say just a couple of minutes ago that I would give way only once more, but on this occasion I will give way to my hon. Friend the Member for Wellingborough (Mr Bone). Then I really will make a little more progress.

Mr Baker

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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.

Mr Baker

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I will get on with my speech now.

Mr Baker

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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.

Mr Baker

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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.

Mr Baker

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I shall give way twice more and then conclude my remarks.

Mr Baker

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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.

Mr Baker

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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.

Mr Baker

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rose—

Mr Baker

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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.

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker)

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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—

Mr Walker

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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

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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.

Mr Walker

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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.

Mr Robin Walker

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indicated dissent.

Mr Robin Walker

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indicated dissent.

The Minister of State, Ministry of Justice (Dominic Raab)

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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.

Dominic Raab

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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.

Dominic Raab

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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

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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.

Dominic Raab

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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.

Dominic Raab

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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

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If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—

Dominic Raab

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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

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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.

Dominic Raab

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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

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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.

Dominic Raab

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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.

Dominic Raab

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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

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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

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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.

Dominic Raab

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On the issue of potholes, I give way to my hon. Friend.

Dominic Raab

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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.

Dominic Raab

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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.

Dominic Raab

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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.

Dominic Raab

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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

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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.

Dominic Raab

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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.

Dominic Raab

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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.

Dominic Raab

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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.

Dominic Raab

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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

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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

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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.

Dominic Raab

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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.

Dominic Raab

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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?

Dominic Raab

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I am going to make some progress.

Dominic Raab

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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.

Dominic Raab

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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

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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.

Dominic Raab

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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.

The Solicitor General (Robert Buckland)

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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.

The Solicitor General

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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?

The Solicitor General

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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.

The Solicitor General

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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.

The Solicitor General

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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.

The Solicitor General

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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.

Dominic Raab

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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.

Dominic Raab

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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.]

Dominic Raab

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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

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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.

Dominic Raab

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rose—

Dominic Raab

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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.

The Solicitor General (Robert Buckland)

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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?

The Solicitor General

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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.

The Solicitor General

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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.

The Solicitor General

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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

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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.

The Solicitor General

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indicated dissent.

The Solicitor General

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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.

The Solicitor General

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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.

The Solicitor General

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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.

The Solicitor General

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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.