European Union (Withdrawal) Bill

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[6th Allocated Day]

[Relevant documents: First Report of the Exiting the European Union Committee, European Union (Withdrawal) Bill, HC 373 First Report of the Procedure Committee, Scrutiny of delegated legislation under the European Union (Withdrawal) Bill: interim report, HC 386.]

Further considered in Committee

[Mrs Eleanor Laing in the Chair]

New Clause 18

Regulations to deal with deficiencies arising from withdrawal - Independent Report

“Within one month of Royal Assent of this Act HM Government shall commission the publication of an Independent Report into the constitutional implications of the powers delegated to Ministers in section 7 of this Act and the implications these powers will have on the relationship between Parliament and the executive, the rule of law and legal certainty, and the stability of the UK’s territorial constitution.”—(Mr Leslie.)

This new clause would require the Government to commission an Independent Report into the constitutional implications of the wide-ranging powers to make regulations delegated to Ministers in Clause 7 of the Bill, in pursuance of the conclusions of the 3rd Report of the House of Lords Select Committee on the Constitution session 2017-19 (HL Paper 19) “European Union (Withdrawal) Bill: interim report”

Brought up, and read the First time.

13:12

[Mr Chris Leslie (Nottingham East) (Lab/Co-op)]

I beg to move, That the clause be read a Second time.

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

With this it will be convenient to consider the following:

New clause 24—Scope of delegated powers—

“Subject to sections 8 and 9 and paragraphs 13 and 21 of Schedule 2, any power to make, confirm or approve subordinate legislation conferred or modified under this Act and its Schedules must be used, and may only be used, insofar as is necessary to ensure that retained EU law continues to operate with equivalent scope, purpose and effect following the United Kingdom’s exit from the EU.”

The purpose of this amendment is to ensure that the powers to create secondary legislation given to Ministers by the Bill can be used only in pursuit of the overall statutory purpose, namely to allow retained EU law to continue to operate effectively after exit day.

New clause 27—Institutional arrangements—

“(1) Before exit day a Minister of the Crown must make provision that all powers and functions relating to the environment or environmental protection that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement (‘relevant powers and functions’) will—

(a) continue to be carried out by an EU entity or public authority;

(b) be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom; or

(c) be carried out by an appropriate international entity or public authority.

(2) For the purposes of this section, relevant powers and functions relating to the UK exercisable by an EU entity or public authority include, but are not limited to—

(a) monitoring and measuring compliance with legal requirements,

(b) reviewing and reporting on compliance with legal requirements,

(c) enforcement of legal requirements,

(d) setting standards or targets,

(e) co-ordinating action,

(f) publicising information including regarding compliance with environmental standards.

(3) Within 12 months of exit day, the Government shall consult on and bring forward proposals for the creation by primary legislation of—

(a) a new independent body or bodies with powers and functions at least equivalent to those of EU entities and public authorities in Member States in relation to environment; and

(b) a new domestic framework for environmental protection and improvement.

(4) Responsibility for any functions or obligations arising from retained EU law for which no specific provision has been made immediately after commencement of this Act will belong to the relevant Minister until such a time as specific provision for those functions or obligations has been made.”

This new clause requires the Government to establish new domestic governance proposals following the UK’s exit from the EU and to ensure statutory and institutional basis for future environmental protection.

New clause 35—Regulations (publication of list)—

“(1) Within 1 month of this Act receiving Royal Assent, the Secretary of State must publish a draft list of regulations that the Government intends to make under section 7.

(2) A list under subsection (1) must include—

(a) the proposed title of the regulation,

(b) the area of retained EU law it is required to correct,

(c) the Government Department who has responsibility for the regulation, and

(d) the proposed month in which the regulation will be tabled.

(3) The Secretary of State must ensure that a list published under subsection (1) is updated within one month from the day it was published, and within one month of every subsequent update, to include any regulations that the Government has since determined it intends to make.”

This new clause would require the Government to produce a list of regulations it intends to make under the Bills correcting powers, and to update that list each month, in order to provide clarity about when, and in which areas, it believes the power will be necessary.

New clause 37—Governance and institutional arrangements—

“(1) Before exit day a Minister of the Crown must seek to make provision that all powers and functions relating to any right, freedom, or protection, that any person might reasonably expect to exercise, that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day, and which do not cease to have effect as a result of the withdrawal agreement (‘relevant powers and functions’) will—

(a) continue to be carried out by an EU entity or public authority;

(b) be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom; or

(c) be carried out by an appropriate international entity or public authority.

(2) For the purposes of this section, relevant powers and functions relating to the UK exercisable by an EU entity or public authority include, but are not limited to—

(a) monitoring and measuring compliance with legal requirements,

(b) reviewing and reporting on compliance with legal requirements,

(c) enforcement of legal requirements,

(d) setting standards or targets,

(e) co-ordinating action,

(f) publicising information.

(3) Responsibility for any functions or obligations arising from retained EU law for which no specific provision has been made immediately after commencement of this Act will belong to the relevant Minister until such a time as specific provision for those functions or obligations has been made.”

This new clause would ensure that the institutions and agencies that protect EU derived rights and protections are replaced to a sufficient standard so those rights and protections will still be enjoyed in practice.

New clause 53—Dealing with deficiencies arising from withdrawal in relation to child refugee family reunion—

“(1) In the exercise of powers under section 7 (Dealing with deficiencies arising from withdrawal) the Secretary of State must in particular make regulations amending the Immigration Rules in order to preserve the effect in the United Kingdom of Commission Regulation (EU) No. 604/2013 (establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person).

(2) In particular, the regulations made under subsection (1) must provide for an unaccompanied minor who has a family member in the United Kingdom who is a refugee or has been granted humanitarian protection to have the same family reunion rights to be reunited in the United Kingdom with that family member as they would have had under Commission Regulation (EU) No. 604/2013.

(3) The regulations under subsection (1) must require an assessment of the best interests of the minor, taking into account possibilities for family reunification, the minor’s well-being and social development, safety and security considerations, and the view of the minor.

(4) Regulations under this section must be made within six months of this Act receiving Royal Assent.

(5) For the purpose of this section “family member” in relation to the unaccompanied minor, means—

(a) their parents;

(b) their adult siblings;

(c) their aunts and uncles;

(d) their grandparents.”

This new clause is intended to provide for refugee family reunion in the UK in place of the family reunion aspects of the Dublin III Regulation, allowing adult refugees in the UK to sponsor relatives who are unaccompanied children to come to the UK from around the world.

New clause 62—Enforcement of retained environmental law—

“(1) The Secretary of State must make regulations under section 7 of this Act for the purpose of ensuring that retained EU legislation relating to environmental protection continues to be monitored and enforced effectively after exit day.

(2) The regulations must, in particular—

(a) create a statutory corporation (to be called “the Environmental Protection Agency”) with operational independence from Ministers of the Crown to monitor environmental targets set by retained EU law relating to environmental protection;

(b) require the statutory corporation to report to Parliament every year on progress in meeting those targets and to make recommendations for remedial action where appropriate;

(c) allow the statutory corporation to publish additional reports identifying action or omissions on the part of Ministers of the Crown that is likely to result in targets not being met.”

This new clause would require Ministers of the Crown to make specific provision for the enforcement of EU legislation relating to environmental protection.

New clause 63—Environmental standards and protections: enforcement—

“(1) Before exit day a Minister of the Crown must make provision that all powers and functions relating to environmental standards and protections that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day and which do not cease to have effect as a result of the withdrawal agreement (“relevant powers and functions”) will be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom.

(2) For the purposes of this section, relevant powers and functions include, but are not limited to—

(a) reviewing and reporting on the implementation of environmental standards in practice,

(b) monitoring and measuring compliance with legal requirements,

(c) publicising information including regarding compliance with environmental standards,

(d) facilitating the submission of complaints from persons with regard to possible infringements of legal requirements, and

(e) enforcing legal commitments.

(3) For the purposes of this section, relevant powers and functions carried out by an appropriate existing or newly established entity or public authority in the United Kingdom on any day after exit day must be at least equivalent to all those exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement.

(4) Any newly established entity or public authority in the United Kingdom charged with exercising any relevant powers and functions on any day after exit day shall not be established other than by an Act of Parliament.

(5) Before making provision under subsection (1), a Minister of the Crown shall hold a public consultation on—

(a) the precise scope of the relevant powers and functions to be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom, and

(b) the institutional design of any entity or public authority in the United Kingdom to be newly established in order to exercise relevant powers and functions.

(6) A Minister of the Crown may by regulations make time-limited transitional arrangements for the exercise of relevant powers and functions until such time as an appropriate existing or newly established entity or public authority in the United Kingdom is able to carry them out.”

This new clause would require the Government to establish new domestic governance arrangements following the UK’s exit from the EU for environmental standards and protections, following consultation.

New clause 82—Tertiary legislation—

“The powers conferred by this Act do not include power to confer any power to legislate by means of orders, rules or other subordinate instrument, other than rules of procedure for any court or tribunal.”

Amendment 65, in clause 7, page 5, line 4, leave out “appropriate” and insert “necessary”.

This Amendment would reduce the wide discretion for using delegated legislation and limit it to those aspects which are unavoidable.

Amendment 15, page 5, line 5, leave out from “effectively” to end of line 6 on page 6.

Amendment 49, page 5, line 7, at end insert—

“(1A) Regulations under subsection (1) may be made so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework.”

This amendment would place a general provision 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.

Amendment 131, page 5, line 7, at end insert—

“(1A) A Minister of the Crown must by regulations make provision to maintain, preserve and protect the rights of any citizen of an EU member state who was lawfully resident in the UK immediately before exit day, and in particular to continue their right to be lawfully resident in the UK.”

This Amendment is intended to preserve after exit day the rights, including residence rights, of EU citizens in the UK.

Amendment 264, page 5, line 7, at end insert—

“(1A) The Secretary of State shall make regulations to define “failure to operate efficiently” for the purposes of this section.”

This amendment would require the Secretary of State to define in regulations one of the criteria for the use of Clause 7 powers to deal with deficiencies arising from withdrawal from the EU.

Amendment 1, page 5, line 8, leave out “(but are not limited to)” and insert “and are limited to”.

To restrict the power of a Minister to make regulations to amend retained EU law to cases where the EU law is deficient in the way set out in the Bill.

Amendment 56, page 5, line 8, leave out “(but are not limited to)”.

This amendment would remove the ambiguity in Clause 7 which sets out a definition of ‘deficiencies in retained EU law’ but allows Ministers significant latitude. By removing the qualifying phrase ‘but are not limited to’, subsection (2) becomes a more precise prescribed set of circumstances where Ministers may and may not make regulations.

Amendment 277, page 5, line 41, at end insert—

“(3A) Regulations under this section may not be made unless a Minister of the Crown has laid before each House of Parliament a report setting out how any functions, regulation-making powers or instruments of a legislative character undertaken by EU entities prior to exit day and instead to be exercisable by a public authority in the United Kingdom shall also be subject to the level of legislative scrutiny by the UK Parliament equivalent to that available to the European Parliament prior to exit day.”

This amendment would ensure that any regulatory or rule-making powers transferred from EU entities to UK public bodies receive the same degree of scrutiny that would have been the case if the UK had remained in the European Union.

Amendment 359, page 5, line 41, at end insert—

“( ) Retained EU law is not deficient only because it enables rights to be exercised in the United Kingdom by persons having a connection with the EU, which other persons having a corresponding connection with the United Kingdom may not be able to exercise in the EU as a consequence of the United Kingdom’s withdrawal from the EU.”

The amendment would make clear that retained EU law cannot be modified under clause 7 to restrict the rights of EU nationals or businesses in the UK simply because UK nationals or businesses may lose equivalent rights in the EU as a result of the UK’s withdrawal.

Amendment 57, page 5, line 42, leave out subsection (4).

This amendment would remove the scope for regulations to make provisions that could be made by an Act of Parliament.

Amendment 32, page 5, line 43, at end insert “, apart from amending or modifying this Act”.

This amendment would remove the proposed capacity of Ministers under Clause 7 to modify and amend the Act itself via delegated powers.

Amendment 121, page 5, line 44, leave out subsection (5) and insert—

“(5) No regulations may be made under this section which provide for the establishment of public authorities in the United Kingdom.

(6) Subsection (5) applies to but is not limited to—

(a) Agency for the Cooperation of Energy Regulators (ACER),

(b) Office of the Body of European Regulators for Electronic Communications (BEREC Office),

(c) Community Plant Variety Office (CPVO),

(d) European Border and Coast Guard Agency (Frontex),

(e) European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA),

(f) European Asylum Support Office (EASO),

(g) European Aviation Safety Agency (EASA),

(h) European Banking Authority (EBA),

(i) European Centre for Disease Prevention and Control (ECDC),

(j) European Chemicals Agency (ECHA),

(k) European Environment Agency (EEA),

(l) European Fisheries Control Agency (EFCA),

(m) European Insurance and Occupational Pensions Authority (EIOPA),

(n) European Maritime Safety Agency (EMSA),

(o) European Medicines Agency (EMA),

(p) European Monitoring Centre for Drugs and Drug Addiction (EMCDDA),

(q) European Union Agency for Network and Information Security (ENISA),

(r) European Police Office (Europol),

(s) European Union Agency for Railways (ERA),

(t) European Securities and Markets Authority (ESMA), and

(u) European Union Intellectual Property Office (EUIPO).”

This amendment ensures that the Government cannot establish new agencies using delegated legislation.

Amendment 388, page 5, line 44, leave out subsection (5).

Amendment 61, page 6, line 3, leave out sub-paragraph (ii).

This amendment would remove the ability of Ministers to replace or abolish public service functions currently undertaken by EU entities without making an alternative provision for those equivalent public services to continue domestically after exit day. Retaining the existing functions undertaken by the EU is an important principle that the part of this sub-clause could potentially undermine.

Amendment 5, page 6, line 3, leave out “abolished”.

To prevent the abolition by SI of a function currently carried out by an EU entity in the UK, as opposed to its replacement or modification.

Amendment 108, page 6, line 4, leave out paragraph (b).

This amendment seeks to prevent the establishment of new public bodies by means of secondary legislation only, as opposed to primary legislation.

Amendment 17, page 6, line 6, at end insert—

“(5A) Regulations under this section must be prefaced by a statement by the person making the regulations—

(a) specifying the nature of the failure of retained European Union law to operate effectively or other deficiency arising from the withdrawal of the United Kingdom from the European Union in respect of which the regulations are made, and

(b) declaring that the person making the regulations—

(i) is satisfied that the conditions in section 7 are met,

(ii) is satisfied that the regulations contain only provision which is appropriate for the purpose of preventing, remedying or mitigating any failure to operate effectively or other deficiency in retained European Union law arising from the withdrawal of the United Kingdom from the European Union in respect of which the regulations are made,

(iii) is satisfied that the effect of the regulations is in due proportion to that failure to operate effectively or other deficiency in European Union retained law arising from the withdrawal of the United Kingdom from the European Union, and

(iv) is satisfied that the regulations are compatible with the Convention rights (within the meaning of section 1 of the Human Rights Act 1998 (c. 42)).”

This amendment replicates the provisions in the Civil Contingencies Act 2004, which limit Ministers’ powers even in a time of declared emergency. They ensure that statutory instruments are proportionate and necessary.

Amendment 48, page 6, line 6, at end insert—

“(5A) But a Minister may not make provision under subsection (4), other than provision which merely restates an enactment, unless the Minister considers that the conditions in subsection (5B), where relevant, are satisfied in relation to that provision.

(5B) These conditions are that—

(a) the effect of the provision is proportionate to the policy objective,

(b) the provision does not remove any necessary protection, and

(c) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”

This amendment is intended to prevent the regulation-making power from being used to remove necessary protections.

Amendment 104, page 6, line 6, at end insert—

“(5A) A public authority established under this section will be abolished after two years.”

This amendment provides for any new public authority established under secondary legislation to be temporary.

Amendment 342, page 6, line 6, at end insert—

“(5A) Regulations to which subsection (5) applies must so far as practicable ensure that all powers and functions exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement are carried out by either an EU entity, an appropriate public authority in the United Kingdom or an appropriate international entity after exit day”.

This amendment would ensure that standards, rights and protections currently maintained by EU entities or public authorities in member states will continue to be maintained in practice following the UK’s exit from the EU.

Amendment 123, page 6, line 10, at end insert—

“(ca) weaken, remove or replace any requirement of law in effect in the United Kingdom place immediately before exit day which, in the opinion of the Minister, was a requirement up to exit day of the United Kingdom’s membership of the customs union,”

This amendment is intended to prevent the regulation-making powers being used to create barriers to the UK’s continued membership of the customs union.

Amendment 124, page 6, line 10, at end insert—

“(ca) weaken, remove or replace any requirement of law in effect in the United Kingdom place immediately before exit day which, in the opinion of the Minister, was a requirement up to exit day of the United Kingdom’s membership of the single market,”.

This amendment is intended to prevent the regulation-making powers being used to create barriers to the UK’s continued membership of the single market.

Amendment 222, page 6, line 11, at end insert—

“(da) remove any protections or rights of consumers which are available in the United Kingdom under EU law immediately before exit day.”

This amendment would prevent the Government from using powers in the Act to remove any consumer protections or rights enshrined in EU law after the United Kingdom’s withdrawal from the European Union.

Amendment 332, page 6, line 11, at end insert—

“(da) remove or reduce any rights available to unaccompanied child refugees or asylum seekers (including those who wish to claim asylum) concerning their admission or transfer to the UK under—

(i) Regulation (EU) No 604/2013 (the “Dublin Regulation”); or

(ii) Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States;

(db) remove any rights or obligations derived from the Treaty on the Functioning of the European Union, the Treaty on the European Union, or the Charter of Fundamental Rights, which can be applied to the treatment of unaccompanied child refugees or asylum seekers (including those who wish to claim asylum) concerning their admission or transfer to the UK,”

This amendment would prevent a Minister from using regulations under Clause 7 of the Bill to remove or reduce rights under the Dublin Regulation, the 2004 Directive on freedom of movement, or to remove rights or obligations under TFEU, TEU or the Charter of Fundamental Rights, regarding admission or transfer to the UK of unaccompanied child refugees or asylum seekers (including those who wish to claim asylum).

Amendment 333, page 6, line 11, at end insert—

“(da) establish a new entity or public authority in the United Kingdom charged with exercising any powers and functions currently exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day in relation to the environment or environmental protection”.

This amendment would ensure that any new institutions required to enforce environmental standards and protections following the UK’s exit from the EU can be created only by primary legislation.

Amendment 52, page 6, line 12, after “revoke” insert “the Equality Act 2010 or”

This amendment would prevent regulations under the Bill being used to amend the Equality Act 2010.

Amendment 363, page 6, line 12, after “revoke”, insert “, or otherwise modify the effect of,”

This amendment would ensure that the restriction in this paragraph could not be undermined by the use of legislation which does not amend the text of the Human Rights Act but modifies its effect.

Amendment 364, page 6, line 13, after “it”, insert—

“(ea) amend, repeal or revoke, or otherwise modify the effect of, any other law relating to equality or human rights,”.

This amendment would broaden the restriction in this subsection to protect all legislation relating to equality and human rights (and not only the Human Rights Act 1998).

Amendment 2, page 6, line 18, at end insert—

“(g) make any other provision, unless the Minister considers that the conditions in subsection (6A) where relevant are satisfied in relation to that provision.

(6A) Those conditions are that—

(a) the policy objective intended to be secured by the provision could not be secured by non-legislative means;

(b) the effect of the provision is proportionate to the policy objective;

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) the provision does not remove any necessary protection;

(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.

(f) the provision is not of constitutional significance”.

To narrow down the circumstances in which this power can be exercised.

Amendment 25, page 6, line 18, at end insert—

“(g) remove or reduce any protections currently conferred upon individuals, groups or the natural environment,

(h) prevent any person from continuing to exercise a right that they can currently exercise,

(i) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

This amendment would prevent the Government’s using delegated powers under Clause 7 to reduce rights or protections.

Amendment 73, page 6, line 18, at end insert—

“(g) make changes to EU-derived domestic legislation concerning the rights of workers in the UK unless the Secretary of State has secured unanimous agreement from the Joint Ministerial Committee.”

Amendment 96, page 6, line 18, at end insert—

“(g) limit the scope or weaken standards of environmental protection.”

This Amendment ensures that the power to make regulations in Clause 7 may not be exercised to reduce environmental protection.

Amendment 109, page 6, line 18, at end insert—

“(g) amend, repeal or revoke any legal right derived from EU law and operative in UK law immediately before 30 March 2019.”

This amendment seeks to prevent the delegated powers granted to Ministers by Clause 7 being used to weaken or abolish existing EU-derived legal rights, such as those on workers’ rights, equality, and environmental protection.

Amendment 233, page 6, line 18, at end insert—

“(g) make changes to EU-derived domestic legislation concerning the co-ordination of social security systems between the UK and EU member states unless the Secretary of State has consulted with the relevant Minister in each of the devolved administrations.”

This amendment would require that changes cannot be made under Clause 7 to EU-derived domestic legislation concerning the co-ordination of social security systems between the UK and EU member states unless the Secretary of State has consulted with the relevant Minister in each of the devolved administrations.

Amendment 234, page 6, line 18, at end insert—

“(g) make changes to EU-derived domestic legislation concerning eligibility for UK pensions unless a public consultation on these changes has taken place.”

This amendment would require that changes cannot be made under Clause 7 to EU-derived domestic legislation concerning eligibility for UK pensions unless a public consultation on these changes has taken place.

Amendment 239, page 6, line 18, at end insert—

“(g) make changes to EU-derived domestic legislation concerning agricultural policies in the UK unless the Secretary of State has secured unanimous agreement from the Joint Ministerial Committee to those changes.”

This amendment would ensure that the power to make regulations on agricultural policy under Clause 7 could not be exercised without agreement from the Joint Ministerial Council.

Amendment 240, page 6, line 18, at end insert—

“(g) make changes to EU-derived domestic legislation concerning fisheries in the UK unless the Secretary of State has secured unanimous agreement from the Joint Ministerial Committee to those changes.”

This amendment would ensure that the power to make regulations concerning fisheries under Clause 7 could not be exercised without agreement from the Joint Ministerial Council.

Amendment 266, page 6, line 18, at end insert—

“(g) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under it.”

This amendment would prevent the powers in Clause 7 being used to amend Equality Act 2010 legislation.

Amendment 269, page 6, line 18, at end insert—

“(g) remove, reduce or otherwise limit the rights of EU citizens resident in the UK.”

This amendment would prevent the powers in Clause 7 being used to remove, reduce or otherwise limit the rights of EU citizens resident in the UK.

Amendment 272, page 6, line 18, at end insert—

“(g) make provision which, in the opinion of the Minister, could pose a threat to national security.”

This amendment would prevent the powers in Clause 7 being used to make provision which could pose a threat to national security.

Amendment 389, page 6, line 18, at end insert—

“(g) confer a power to legislate (other than a power to make rules of procedure for a court or tribunal).”

Amendment 138, page 6, line 18, at end insert—

“(6A) Regulations may not be made under this section unless a Minister of the Crown has certified that the Minister is satisfied that the regulations do not remove or reduce any environmental protection provided by retained EU law.”

This amendment ensures that regulations under this section cannot interfere with environmental protection under retained EU law, by requiring a Ministerial certificate.

Amendment 360, page 6, line 18, at end insert—

“(6A) A Minister of the Crown must as soon as reasonably practicable—

(a) publish a statement of Her Majesty’s Government’s policy as to modifications of retained EU law under this section, so far as they appear to the Minister likely to affect industry and commerce in the United Kingdom, and

(b) consult with representatives of, or participants in, industry and commerce as to the modifications which are necessary or desirable.

(6B) In subsection (6A) “industry and commerce” includes financial and professional services.”

The amendment would require early consultation with representatives of the financial and professional services industries on relevant modifications which are to be made under clause 7.

Amendment 385, page 6, line 18, at end insert—

“(6A) A Minister of the Crown must by regulations make provision to replicate the protections in relation to ‘protected persons’ as defined in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014 after exit day.”

This amendment is intended to require the Government to make regulations that continue to recognise European Protection Orders issued by courts in other EU member states after exit day.

Amendment 16, page 6, line 21, leave out subsection (8).

Amendment 88, page 6, line 25, at end insert—

“(9) Regulations may only be made under subsection (5)(a)(ii) if an impact assessment on the replacement, abolition or modification of the functions of EU entities is laid before each House of Parliament prior to them being made.”

This amendment prevents Ministers of the Crown from being able to replace, abolish or modify the functions of EU Agencies without laying impact assessments on its effect before both Houses of Parliament.

Amendment 334, page 6, line 25, at end insert—

“(9) In the exercise of powers under this section the Secretary of State must guarantee the standards and protections currently required as a result of the National Emissions Ceilings Directive, the Ambient Air Quality Directive, the Industrial Emissions Directive, the Medium Combustion Plant Directive and Directive 2004/107/EC relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air.”

This amendment would ensure that the UK maintains existing air quality standards and protections following the UK’s exit from the EU.

Clause 7 stand part.

Amendment 206, in clause 9, page 6, line 43, leave out “appropriate” and insert “necessary”

To require the final deal with the EU to be approved by statute passed by Parliament.

Amendment 114,  page 7, line 1, leave out subsection (2).

This amendment seeks to restrict the delegated powers granted to Ministers by Clause 9.

Amendment 18, page 7, line 2, leave out “(including modifying this Act)” and insert

“except modifying this Act, the Parliament Acts 1911 and 1949 and any Act granted Royal Assent in the session of Parliament in which this Act is passed”.

This removes the power of Ministers to amend this Act, the Parliament Acts and any Act granted assent in this session of Parliament. It is necessary so as to safeguard the constitutional provisions in the Parliament Acts, such as the provision that a Parliament cannot last more than five years and the relative powers of the House of Lords.

Amendment 30, page 7, line 2, leave out ‘(including modifying this Act)’ and insert

“, apart from amending or modifying this Act”.

This amendment would remove the proposed capacity of Ministers in Clause 9 to modify and amend the Act itself via delegated powers.

Amendment 59, page 7, line 2, leave out “including” and insert “but not”.

This amendment would prevent the Ministerial order making powers in Clause 9 being used to modify the European Union (Withdrawal) Act itself.

Amendment 368, page 7, line 6, leave out “or”.

This amendment is preparatory to Amendment 370.

Amendment 369, page 7, line 7, after “revoke”, insert “, or otherwise modify the effect of,”

This amendment would ensure that the restriction in this paragraph could not be undermined by the use of legislation which does not amend the text of the Human Rights Act but modifies its effect.

Amendment 13, page 7, line 8, at end insert—

“(e) make any provision, unless the Minister considers that the conditions in subsection (3B) where relevant are satisfied in relation to that provision.

(3A) Those conditions are that—

(a) the policy objective intended to be secured by the provision could not be secured by non-legislative means;

(b) the effect of the provision is proportionate to the policy objective;

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) the provision does not remove any necessary protection;

(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;

(f) the provision is not of constitutional significance”

Amendment 27, page 7, line 8, at end insert—

“(e) remove or reduce any protections currently conferred upon individuals, groups or the natural environment,

(f) prevent any person from continuing to exercise a right that they can currently exercise,

(g) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

This amendment would prevent the Government’s using delegated powers under Clause 9 to reduce rights or protections.

Amendment 98, page 7, line 8, at end insert—

“(e) limit the scope or weaken standards of environmental protection.”

This Amendment ensures that the power to make regulations in Clause 8 may not be exercised to reduce environmental protection.

Amendment 115, page 7, line 8, at end insert—

“(e) amend, repeal or revoke any legal right derived from EU law and operative in UK law immediately before 30 March 2019.”

This amendment seeks to prevent the delegated powers granted to Ministers by Clause 9 being used to weaken or abolish existing EU-derived legal rights, such as those on workers’ rights, equality, and environmental protection.

Amendment 268, page 7, line 8, at end insert—

“(e) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under it.”

This amendment would prevent the powers in Clause 9 being used to amend Equality Act 2010 legislation.

Amendment 271, page 7, line 8, at end insert—

“(e) remove, reduce or otherwise limit the rights of EU citizens resident in the UK.”

This amendment would prevent the powers in Clause 9 being used to remove, reduce or otherwise limit the rights of EU citizens resident in the UK.

Amendment 274, page 7, line 8, at end insert—

“(e) make provision which, in the opinion of the Minister, could pose a threat to national security.”

This amendment would prevent the powers in Clause 9 being used to make provision which could pose a threat to national security.

Amendment 370, page 7, line 8, at end insert “, or

(e) amend, repeal or revoke, or otherwise modify the effect of, any other law relating to equality or human rights.”.

This amendment would broaden the restriction in this subsection to protect all legislation relating to equality and human rights (and not only the Human Rights Act 1998).

New clause 1—Scrutiny Committee—

“(1) For the purposes of this Act ‘a scrutiny committee’ refers to either—

(a) the House of Lords Secondary Legislation Scrutiny Committee, or

(b) a Committee of the House of Commons which is established to perform the specific functions assigned to a scrutiny committee in this Act.

(2) The scrutiny committee referred to in subsection (1)(b) shall be chaired by a Member who is—

(a) of the same Party as the Official Opposition, and

(b) elected by the whole House.”

This new clause establishes the principle that there shall be a Commons triage committee which works alongside the Lords Secondary Legislation Scrutiny Committee to determine the level of scrutiny each statutory instrument shall receive.

New clause 6—Government proposals for Parliamentary scrutiny—

“Within one month of Royal Assent of this Act the Leader of the House of Commons shall publish proposals for improved scrutiny of delegated legislation and regulations that result from this Act.”

This new clause would require the Government to bring forward early proposals for the House of Commons to consider as changes to Standing Orders to reflect the scrutiny required as a result of changes to regulation and delegated legislation made by this Act.

New clause 26—Scrutiny of statutory instruments—

“(1) A Parliamentary Committee shall determine the form and duration of parliamentary and public scrutiny for every statutory instrument proposed to be made under this Act.

(2) Where the relevant Committee decides that the statutory instrument will be subject to enhanced parliamentary scrutiny the Committee shall have the power—

(a) to require a draft of the proposed statutory instrument be laid before Parliament;

(b) to require the relevant Minister to provide further evidence or explanation as to the purpose and necessity of the proposed instrument;

(c) to make recommendations to the relevant Minister in relation to the text of the draft statutory instrument;

(d) to recommend to the House that “no further proceedings be taken” in relation to the draft statutory instrument.

(3) Where an instrument is subject to enhanced scrutiny, the relevant Minister must have regard to any recommendations made by the Parliamentary Committee pursuant to subparagraph © above before laying a revised draft instrument before each House of Parliament.

(4) Where an instrument is subject to public consultation, the relevant Minister must have regard to the results of the consultation before laying a revised draft instrument before each House of Parliament or making a Written Statement explaining why no revision is necessary.”

This new clause seeks to ensure that a Parliamentary Committee rather than ministers should decide what is the appropriate level of scrutiny for regulations made under the Act and that the Parliamentary Committee has the power to require enhanced scrutiny in relation to regulations that it considers to be particularly significant or contentious.

Amendment 68, in schedule 7, page 39, line 13, leave out sub-paragraphs (1) to (3) and insert—

“(1) If a Minister considers it appropriate to proceed with the making of regulations under section 7, the Minister shall lay before Parliament—

(a) draft regulations,

(b) an explanatory document and

(c) a declaration under sub-paragraph (3).

(2) The explanatory document must—

(a) introduce and explain the amendment made to retained EU law by each proposed regulation, and

(b) set out the reason why each such amendment is necessary (or, in the case where the Minister is unable to make a statement of necessity under sub-paragraph (3)(a), the reason why each such amendment is nevertheless considered appropriate).

(3) The declaration required in sub-paragraph (1) must either—

(a) state that, in the Minister’s view, the provisions of the draft regulations do not exceed what is necessary to prevent, remedy or mitigate any deficiency in retained EU law arising from the withdrawal of the United Kingdom from the EU (a “statement of necessity”); or

(b) include a statement to the effect that although the Minister is unable to make a statement of necessity the Government nevertheless proposes to exercise the power to make the regulations in the form of the draft.

(4) Subject as follows, if after the expiry of the 21-day period a joint committee of both Houses of Parliament appointed to consider draft regulations under this Schedule (“the joint committee”) has not reported to both Houses a resolution in respect of the draft regulations laid under sub-paragraph (1), the Minister may proceed to make a statutory instrument in the form of the draft regulations.

(5) A statutory instrument containing regulations under sub-paragraph (4) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) The procedure in sub-paragraphs (7) to (9) shall apply to the proposal for the draft regulations instead of the procedure in sub-paragraph (4) if—

(a) either House of Parliament so resolves within the 21-day period,

(b) the joint committee so recommends within the 21-day period and neither House by resolution rejects the recommendation within that period, or

(c) the draft regulations contain provision to—

(i) establish a public authority in the United Kingdom,

(ii) provide for any function of an EU entity or public authority in a member State to be exercisable instead by a public authority in the United Kingdom established by regulations under section 7, 8 or 9 or Schedule 2,

(iii) provides for any function of an EU entity or public authority in a member State of making an instrument of a legislative character to be exercisable instead by a public authority in the United Kingdom,

(iv) imposes, or otherwise relates to, a fee in respect of a function exercisable by a public authority in the United Kingdom,

(v) creates, or widens the scope of, a criminal offence, or

(vi) creates or amends a power to legislate.

(7) The Minister must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the proposal for the draft regulations,

made during the 60-day period with regard to the draft regulations.

(8) If after the expiry of the 60-day period the draft regulations are approved by a resolution of each House of Parliament, the Minister may make regulations in the form of the draft.

(a) revised draft regulations, and

(b) a statement giving a summary of the changes proposed.

(9) If after the expiry of the 60-day period the Minister wishes to proceed with the draft regulations but with material changes, the Minister may lay before Parliament—

(a) revised draft regulations, and

(b) a statement giving a summary of the changes proposed

(10) If the revised draft regulations are approved by a resolution of each House of Parliament, the Minister may make regulations in the terms of the revised draft.

(11) For the purposes of sub-paragraphs (1) to (10) regulations are made in the terms of draft regulations or revised draft regulations if they contain no material change to their provisions.

(12) In sub-paragraphs (1) to (10), references to the “21-day” and “60-day” periods in relation to any draft regulations are to the periods of 21 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

(13) For the purposes of sub-paragraph (12), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

This amendment would require the Minister to provide an explanatory statement on whether the regulations simply transpose EU law or make further changes, subject to a check by a committee of the House, and require that if the regulations involve more than simple transposition the super affirmative procedure must be used.

Amendment 129, page 39, line 13, leave out paragraphs 1 to 3 and insert—

“Scrutiny procedure: introductory

1 A statutory instrument containing regulations under section 7 may not be made by a Minister of the Crown unless it complies with the procedures in this Part.

Determination of scrutiny procedure

2 (1) The explanatory document laid with a statutory instrument or draft statutory instrument containing regulations under section 7 must contain a recommendation by the Minister as to which of the following should apply in relation to the making of an order pursuant to the draft order—

(a) the negative resolution procedure:

(b) the affirmative resolution procedure;

(c) the super-affirmative procedure.

(2) The explanatory document must give reasons for the Minister’s recommendation.

(3) Where the Minister’s recommendation is that the negative resolution procedure should apply, that procedure shall apply unless, within the 30-day period—

(a) either House of Parliament requires that the super-affirmative procedure shall apply, in which case that procedure shall apply; or

(b) in a case not falling within paragraph (a), either House of Parliament requires that the affirmative resolution procedure shall apply, in which case that procedure shall apply.

(4) Where the Minister’s recommendation is that the affirmative resolution should apply, that procedure shall apply unless, within the 30-day period, either House of Parliament requires that the super-affirmative resolution procedure shall apply, in which case the super-affirmative resolution procedure shall apply.

(5) Where the Minister’s recommendation is that the super-affirmative procedure should apply, that procedure shall apply.

(6) For the purposes of this paragraph a House of Parliament shall be taken to have required a procedure within the 30-day period if—

(a) that House resolves within that period that that procedure shall apply; or

(b) in a case not falling within paragraph (a), a committee of that House charged with reporting on the draft order has recommended within that period that that procedure shall apply and the House has not by resolution rejected that recommendation within that period.

Super-affirmative procedure

3 (1) for the purposes of this Part of this Schedule, the “super-affirmative resolution procedure” is as follows.

(2) The Minister must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,

made during the 60-day period with regard to the draft order.

(3) If, after the expiry of the 60-day period, the Minister wishes to make an order in the terms of the draft, he or she must lay before Parliament a statement—

(a) stating whether any representations were made; and

(b) if any representations were so made, giving details of them.

(4) The Minister may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.

(5) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under sub-paragraph (3) and before the draft order is approved by that House under sub-paragraph (4), recommend under this subparagraph that no further proceedings be taken in relation to the draft order.

(6) Where a recommendation is made by a committee of either House under subparagraph (5) in relation to a draft statutory instrument, no proceedings may be taken in relation to the draft statutory instrument in that House unless the recommendation is, in the same Session, rejected by resolution of that House.

(7) If, after the expiry of the 60-day period, the Minister wishes to make an order consisting of a version of the draft statutory instrument with material changes, he or she must lay before Parliament—

(a) a revised draft statutory instrument; and

(b) a statement giving details of—

(i) any representations made; and

(ii) the revisions proposed.

(8) The Minister may after laying a revised draft statutory instrument and statement under sub-paragraph (7) make regulations in the terms of the revised statutory instrument if it is approved by a resolution of each House of Parliament.

(9) However, a committee of either House charged with reporting on the revised draft statutory instrument may, at any time after the revised draft statutory is laid under sub-paragraph (7) and before it is approved by that House under sub-paragraph (8), recommend under this sub-paragraph that no further proceedings be taken in relation to the revised draft statutory instrument.

(10) Where a recommendation is made by a committee of either House under sub-paragraph (9) in relation to a revised draft statutory instrument, no proceedings may be taken in relation to the revised draft statutory instrument in that House under subsection (8) unless the recommendation is, in the same Session, rejected by resolution of that House.

(11) In this Part—

(a) the “30-day period” means the period of 30 days beginning with the day on which the draft statutory instrument was laid before Parliament;

(b) the “60-day period” means the period of 60 days beginning with the day on which the draft statutory instrument was laid before Parliament;

(c) the “affirmative resolution procedure” has the same meaning as in section 17 of the Legislative and Regulatory Reform Act 2006;

(d) the “negative resolution procedure” has the same meaning as in section 16 of the Legislative and Regulatory Reform Act 2006.”

This amendment would ensure Parliament has the power to determine, following recommendations by the Minister, which parliamentary procedure should be used to scrutinise statutory instruments containing regulations that deal with deficiencies arising from EU withdrawal. It also provides for use of the “super-affirmative resolution procedure” whereby a committee of either House can recommend that no further proceedings be taken in relation to a draft order, which can only be over-turned by a resolution of that House.

Amendment 20, page 39, line 13, leave out

“which contain provisions falling with sub-paragraph (2).”

This amendment is linked to Amendment 21 and removes the provision that certain statutory instruments can be introduced under the negative resolution and requires all SIs made under Clause 7 to go through the affirmative route with a vote in both Houses. It means that the Government could not bypass Parliament by refusing to grant time for a debate on annulling an SI.

Amendment 216, page 39, line 14, after “unless” insert—

“(a) the Minister laying the instrument has made a declaration that the instrument does no more than necessary to prevent, remedy or mitigate—

(i) any failure of retained EU law to operate effectively, or

(ii) any other deficiency in retained EU law arising from the withdrawal of the United Kingdom from the EU, and

(b) ”.

Amendment 21, page 39, line 17, leave out sub-paragraphs (2) and (3)

This amendment is linked to Amendment 20 and removes the provision that certain statutory instruments can be introduced under the negative resolution and requires all SIs made under Clause 7 to go through the affirmative route with a vote in both Houses. It means that the Government could not bypass Parliament by refusing to grant time for a debate on annulling an SI.

Amendment 33, page 39, line 17, after “if” insert

“a scrutiny committee determines that”.

This amendment together with Amendments 34 and 35 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 7 of this Act, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 34, page 39, line 29, at end insert—

“(g) is otherwise of sufficient policy interest to merit the application of sub-paragraph (1).”

This amendment together with Amendments 33 and 35 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 7 of this Act, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 265, page 39, line 29, at end insert—

“(g) defines “failure to operate efficiently” under section 7(1A).”

This amendment, linked to Amendment 264, would ensure that any regulations to define “failure to operate efficiently” under section 7(1A) would be subject to affirmative procedure.

Amendment 3, page 39, line 30, leave out sub-paragraphs (3) to (10) and insert—

“(3) A Minister of the Crown must not make an Order under (1) and (2) above or any other Order to which this Schedule applies, unless—

(a) a draft Order and explanatory document has been laid before Parliament in accordance with paragraph 1A; and

(b) in the case of any Order which can be made other than solely by a resolution of each House of Parliament, the Order is made as determined under paragraph 1B in accordance in accordance with—

(i) the negative resolution procedure (see paragraph 1C); or

(ii) the affirmative resolution procedure (see paragraph 1D); or

(c) it is declared in the Order that it appears to the person making it that because of the urgency of the matter, it is necessary to make the Order without a draft being so approved (see paragraph 1E).

Draft Order and Explanatory document laid before Parliament

1A (1) If the minister considers it appropriate to proceed with the making of an Order under this Part, he must lay before Parliament—

(a) a draft of the Order, together with

(b) an explanatory document.

(2) The explanatory document must—

(a) explain under which power or powers in this Part the provision contained in the Order is made;

(b) introduce and give reasons for the provision;

(c) explain why the Minister considers that—

(i) in the case of an Order under section 7, include, so far as appropriate, an assessment of the extent to which the provision made by the Order would prevent, remedy or mitigate—any failure of retained EU law to operate effectively; or any other deficiency in retained EU law arising from the withdrawal of the United Kingdom from the EU,

(ii) in the case of an Order under section 8, include, so far as appropriate, an assessment of the extent to which the provision made by the Order would prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom,

(iii) in the case of an Order under section 9, include, so far as appropriate, an assessment of the extent to which implementation of the withdrawal agreement should be in force on or before exit day.

(d) identify and give reasons for—

(i) any functions of legislating conferred by the Order; and

(ii) the procedural requirements attaching to the exercise of those functions.

Determination of Parliamentary procedure

1B (1) The explanatory document laid with a draft Order under paragraph 1A must contain a recommendation by the Minister as to which of the following should apply in relation to the making of an Order pursuant to the draft Order—

(a) the negative resolution procedure (see paragraph 1C); or

(b) the affirmative resolution procedure (see paragraph 1D).

(2) The explanatory document must give reasons for the Minister’s recommendation.

(3) Where the Minister’s recommendation is that the negative resolution procedure should apply, that procedure shall apply unless, within the 20-day period either House of Parliament requires that the affirmative resolution procedure shall apply, in which case that procedure shall apply.

(4) For the purposes of this paragraph a House of Parliament shall be taken to have required a procedure within the 20-day period if—

(a) that House resolves within that period that that procedure shall apply; or

(b) in a case not falling within sub paragraph (4)(a), a committee of that House charged with reporting on the draft Order has recommended within that period that that procedure should apply and the House has not by resolution rejected that recommendation within that period.

(5) In this section the “20-day period” means the period of 20 days beginning with the day on which the draft Order was laid before Parliament under paragraph 1A.

Negative resolution procedure

1C (1) For the purposes of this Part, the “negative resolution procedure” in relation to the making of an Order pursuant to a draft order laid under paragraph 1A is as follows.

(2) The Minister may make an order in the terms of the draft Order subject to the following provisions of this paragraph.

(3) The Minister may not make an order in the terms of the draft Order if either House of Parliament so resolves within the 40-day period.

(4) For the purposes of this paragraph an Order is made in the terms of a draft Order if it contains no material changes to the provisions of the draft Order.

(5) In this paragraph the “40-day period” means the period of 40 days beginning with the day on which the draft Order was laid before Parliament under paragraph 1A.

Affirmative resolution procedure

1D (1) For the purposes of this Part the “affirmative resolution procedure” in relation to the making of an Order pursuant to a draft Order laid under paragraph 1A is as follows.

(2) The Minister must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft Order, made during the 40-day period with regard to the draft Order.

(3) If, after the expiry of the 40-day period, the minister wishes to make an Order in the terms of the draft, he must lay before Parliament a statement—

(a) stating whether any representations were made under sub-paragraph (2)(a); and

(b) if any representations were so made, giving details of them.

(4) The Minister may after the laying of such a statement make an Order in the terms of the draft if it is approved by a resolution of each House of Parliament.

(5) If, after the expiry of the 40-day period, the Minister wishes to make an Order consisting of a version of the draft Order with material changes, he must lay before Parliament—

(a) a revised draft Order; and

(b) a statement giving details of—

(i) any representations made under sub-paragraph (2)(a); and

(ii) the revisions proposed.

(6) The Minister may after laying a revised draft Order and statement under sub-paragraph (5) make an Order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.

(7) For the purposes of sub-paragraphs (4) an Order is made in the terms of a draft Order if it contains no material changes to the provisions of the draft Order.

(8) In this paragraph the “40-day period” has the meaning given by paragraph 4(5)(a).

Procedure in urgent cases

1E (1) If an Order is made without being approved in draft, the person making it must lay it before Parliament, accompanied by the required information, after it is made.

(2) If, at the end of the period of one month beginning with the day on which the original Order was made, a resolution has not been passed by each House approving the original or replacement Order, the Order ceases to have effect.

(3) For the purposes of sub-paragraph (1), “required information” means—

(a) a statement of the reasons for proceeding under paragraph 1E; and

(b) an explanatory document, as set out in paragraph 1A (2).”

To set up a triage and scrutiny system under the control of Parliament for determining how Statutory Instruments under Clause 7 of the Bill will be dealt with.

Amendment 67, page 39, line 30, leave out sub-paragraph (3).

This amendment would facilitate the use of affirmative and super-affirmative procedures, other than for the transfer of functions of EU public bodies.

Amendment 35, page 39, line 33, at end insert

“, unless a scrutiny committee determines that the instrument is of such significant policy interest that it ought to be subject to approval of each House with a procedure that allows for amendment.”

This amendment together with Amendments 33 and 34 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 7 of this Act, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 392, page 39, line 33, at end insert—

“( ) See paragraph 2A for restrictions on the choice of procedure under sub-paragraph (3).”

This amendment signposts the existence, and location within the Bill, of a scrutiny process involving a committee of the House of Commons for regulations under Clause 7 for which there is a choice between negative and affirmative procedures.

Amendment 130, page 40, line 23, leave out sub-paragraphs (2) to (4) and insert—

“(2) The procedure provided for in paragraphs 1 to 3 of this Part in respect of the Houses of Parliament applies in relation to regulations to which this paragraph applies as well as any other procedure provided for by this paragraph which is applicable to the regulations concerned.”

This amendment applies the procedures set out in Amendment 129 in respect of the UK Parliament for regulations made jointly by a Minister of the Crown acting jointly with a devolved authority.

Amendment 4, page 40, line 32, leave out from “is” to end of line 34 and insert

“subject to the rules set out in paragraphs 1 to 1E above.”

Consequential amendment to Amendment 3.

Amendment 393, page 42, line 4, at end insert—

“Parliamentary committee to sift certain regulations involving Minister of the Crown

2A (1) Sub-paragraph (2) applies if a Minister of the Crown who is to make a statutory instrument to which paragraph 1(3) applies is of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.

(2) The Minister may not make the instrument so that it is subject to that procedure unless—

(a) condition 1 is met, and

(b) either condition 2 or 3 is met.

(3) Condition 1 is that a Minister of the Crown—

(a) has made a statement in writing to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament, and

(b) has laid before the House of Commons—

(i) a draft of the instrument, and

(ii) a memorandum setting out the statement and the reasons for the Minister’s opinion.

(4) Condition 2 is that a committee of the House of Commons charged with doing so has made a recommendation as to the appropriate procedure for the instrument.

(5) Condition 3 is that the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House of Commons as mentioned in sub-paragraph (3) has ended without any recommendation being made as mentioned in sub-paragraph (4).

(6) In sub-paragraph (5) “sitting day” means a day on which the House of Commons sits.

(7) Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument to which paragraph 1(3) applies is made that another procedure should apply in relation to the instrument (whether under paragraph 1(3) or 3).

(8) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid in draft before Parliament) does not apply in relation to any statutory instrument to which this paragraph applies.”

This amendment ensures that regulations under Clause 7 for which there is a choice between negative and affirmative procedures cannot be subject to the negative procedure without first having been subject to a scrutiny process involving a committee of the House of Commons. The scrutiny process envisages that the committee will make a recommendation as to the appropriate procedure in the light of draft regulations and other information provided by the Government.

Amendment 394, page 42, line 31, at end insert—

“(7) Sub-paragraph (8) applies to a statutory instrument to which paragraph 1(3) applies where the Minister of the Crown who is to make the instrument is of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) Paragraph 2A does not apply in relation to the instrument if the instrument contains a declaration that the Minister is of the opinion that, by reason of urgency, it is necessary to make the regulations without meeting the requirements of that paragraph.”

This amendment permits the scrutiny process for deciding whether certain regulations under Clause 7 should be subject to the negative or affirmative procedure to be disapplied in urgent cases.

Amendment 36, page 43, line 3, after “if” insert

“a scrutiny committee determines that”.

This amendment together with Amendments 37 and 38 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 8 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 37, page 43, line 15, at end insert—

“(g) is otherwise of sufficient policy interest to merit the application of sub-paragraph (1)”.

This amendment together with Amendments 36 and 38 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 8 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 22, page 43, line 19, at end insert

“or if the Government has not provided time on the floor of the House for a debate and vote on a prayer against the statutory instrument signed by the Leader of the Opposition or 80 Members of the House of Commons.”

This would mean that if the Leader of the Opposition or 80 members of the House of Commons were to sign a prayer against an SI that was subject under Schedule 7 to the negative procedure, the Government would have to provide time for a debate and a vote on the floor of the House or lose the SI. At present there is no such provision in the House of Commons.

Amendment 38, page 43, line 19, at end insert

“,unless a scrutiny committee determines that the instrument is of such significant policy interest that it ought to be subject to approval of each House with a procedure that allows for amendment.”

This amendment together with Amendments 36 and 37 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 8 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 395, page 43, line 19, at end insert—

“( ) See paragraph 10A for restrictions on the choice of procedure under sub-paragraph (3).”

This amendment signposts the existence, and location within the Bill, of a scrutiny process involving a committee of the House of Commons for regulations under Clause 8 for which there is a choice between negative and affirmative procedures.

Amendment 23, page 43, line 26, leave out

“which contain provisions falling within sub-paragraph (2).”

This amendment is linked to Amendment 24 and removes the provision that certain statutory instruments can be introduced under the negative resolution and requires all SIs under Clause 9 to go through the affirmative route with a vote in both Houses. It means that the Government could not bypass Parliament by refusing to grant time for a debate on annulling an SI.

Amendment 24, page 43, line 30, leave out sub-paragraph (2).

This amendment is linked to Amendment 23 and removes the provision that certain statutory instruments can be introduced under the negative resolution and requires all SIs under Clause 9 to go through the affirmative route with a vote in both Houses. It means that the Government could not bypass Parliament by refusing to grant time for a debate on annulling an SI.

Amendment 39, page 43, line 30, after “if” insert

“a scrutiny committee determines that”.

This amendment together with Amendments 40 and 41 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 9 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 40, page 43, line 43, at end insert—

“(h) is otherwise of sufficient policy interest to merit the application of sub-paragraph (1).”

This amendment together with Amendments 39 and 41 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 9 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 41, page 43, line 47, at end insert

“, unless a scrutiny committee determines that the instrument if of such significant policy interest that it ought to be subject to approval of each House with a procedure that allows for amendment.”

This amendment together with Amendments 39 and 40 would establish that it is for Parliament to decide which level of scrutiny a Statutory Instrument shall receive under Clause 9 of this Bill, and that matters of policy interest will be subject to the approval of both Houses and to amendment.

Amendment 396, page 43, line 47, at end insert—

“( ) See paragraph 10A for restrictions on the choice of procedure under sub-paragraph (3).”

This amendment signposts the existence, and location within the Bill, of a scrutiny process involving a committee of the House of Commons for regulations under Clause 9 for which there is a choice between negative and affirmative procedures.

Amendment 374, page 44, line 5, at end insert—

“Amendment of definition of “law relating to equality or human rights”

6A A statutory instrument containing regulations of a Minister of the Crown under section 14(7) may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.”

This amendment provides for draft affirmative resolution scrutiny for the power to the definition of “law relating to equality or human rights”, inserted by Amendment 371.

Amendment 397, page 45, line 11, at end insert—

“Parliamentary committee to sift certain regulations involving Minister of the Crown

10A (1) Sub-paragraph (2) applies if a Minister of the Crown who is to make a statutory instrument to which paragraph 5(3) or 6(3) applies is of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.

(2) The Minister may not make the instrument so that it is subject to that procedure unless—

(a) condition 1 is met, and

(b) either condition 2 or 3 is met.

(3) Condition 1 is that a Minister of the Crown—

(a) has made a statement in writing to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament, and

(b) has laid before the House of Commons—

(i) a draft of the instrument, and

(ii) a memorandum setting out the statement and the reasons for the Minister’s opinion.

(4) Condition 2 is that a committee of the House of Commons charged with doing so has made a recommendation as to the appropriate procedure for the instrument.

(5) Condition 3 is that the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House of Commons as mentioned in sub-paragraph (3) has ended without any recommendation being made as mentioned in sub-paragraph (4).

(6) In sub-paragraph (5) “sitting day” means a day on which the House of Commons sits.

(7) Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument to which paragraph 5(3) or 6(3) applies is made that another procedure should apply in relation to the instrument (whether under that paragraph or paragraph 11).

(8) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid in draft before Parliament) does not apply in relation to any statutory instrument to which this paragraph applies.”

This amendment ensures that regulations under Clause 8 or 9 for which there is a choice between negative and affirmative procedures cannot be subject to the negative procedure without first having been subject to a scrutiny process involving a committee of the House of Commons. The scrutiny process envisages that the committee will make a recommendation as to the appropriate procedure in the light of draft regulations and other information provided by the Government.

Amendment 398, page 45, line 40, at end insert—

“(7) Sub-paragraph (8) applies to a statutory instrument to which paragraph 5(3) or 6(3) applies where the Minister of the Crown who is to make the instrument is of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) Paragraph 10A does not apply in relation to the instrument if the instrument contains a declaration that the Minister is of the opinion that, by reason of urgency, it is necessary to make the regulations without meeting the requirements of that paragraph.”

This amendment permits the scrutiny process for deciding whether certain regulations under Clause 8 or 9 should be subject to the negative or affirmative procedure to be disapplied in urgent cases.

Government amendment 391.

Amendment 207, in clause 17, page 13, line 35, leave out “appropriate” and insert “necessary”.

Amendment 208, page 14, line 7, leave out “appropriate” and insert “necessary”.

Amendment 373, page 14, line 13, at end insert—

“(8) Regulations under subsection (1) or (5) may not amend, repeal or revoke, or otherwise modify the effect of, any law relating to equality or human rights.”

This amendment would replicate, for the powers in clause 17, the equality and human rights restrictions on other powers in this Bill (as modified by other amendments).

Amendment 205, in clause 8, page 6, line 28, leave out “appropriate” and insert “necessary”.

Amendment 110, page 6, line 31, leave out subsection (2)

This amendment seeks to restrict the delegated powers granted to Ministers by Clause 8.

Amendment 31, page 6, line 32, at end insert “, apart from amending or modifying this Act”.

This amendment would remove the proposed capacity of Ministers in Clause 8 to modify and amend the Act itself via delegated powers.

Amendment 365, page 6, line 36, leave out “or”

This amendment is preparatory to Amendment 367.

Amendment 366, page 6, line 37, after “revoke”, insert “, or otherwise modify the effect of,”

This amendment would ensure that the restriction in this paragraph could not be undermined by the use of legislation which does not amend the text of the Human Rights Act but modifies its effect.

Amendment 367, page 6, line 38, at end insert “, or

(e) amend, repeal or revoke, or otherwise modify the effect of, any other law relating to equality or human rights.”.

This amendment would broaden the restriction in this subsection to protect all legislation relating to equality and human rights (and not only the Human Rights Act 1998).

Amendment 12, page 6, line 38, at end insert—

“(e) make any provision, unless the Minister considers that the conditions in subsection (3A) where relevant are satisfied in relation to that provision.

(3A) Those conditions are that—

(a) the policy objective intended to be secured by the provision could not be secured by non-legislative means;

(b) the effect of the provision is proportionate to the policy objective;

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) the provision does not remove any necessary protection;

(e) the provision does not prevent any person from exercising any right or freedom which that person might reasonably expect top continue to exercise;

(f) the provision is not of constitutional significance”

Amendment 26, in clause 8, page 6, line 38, at end insert—

“(e) remove or reduce any protections currently conferred upon individuals, groups or the natural environment,

(f) prevent any person from continuing to exercise a right that they can currently exercise,

(g) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

This amendment would prevent the Government’s using delegated powers under Clause 8 to reduce rights or protections.

Amendment 97, page 6, line 38, at end insert—

“(e) limit the scope or weaken standards of environmental protection.”

This Amendment ensures that the power to make regulations in Clause 8 may not be exercised to reduce environmental protection.

Amendment 111, page 6, line 38, at end insert—

“(e) amend, repeal or revoke any legal right derived from EU law and operative in UK law immediately before 30 March 2019.”

This amendment seeks to prevent the delegated powers granted to Ministers by clause 8 being used to weaken or abolish existing EU-derived legal rights, such as those on workers’ rights, equality, and environmental protection.

Amendment 267, page 6, line 38, at end insert—

“(e) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under it.”

This amendment would prevent the powers in Clause 8 being used to amend Equality Act 2010 legislation.

Amendment 270, page 6, line 38, at end insert—

“(e) remove, reduce or otherwise limit the rights of EU citizens resident in the UK.”

This amendment would prevent the powers in Clause 8 being used to remove, reduce or otherwise limit the rights of EU citizens resident in the UK.

Amendment 273, page 6, line 38, at end insert—

“(e) make provision which, in the opinion of the Minister, could pose a threat to national security.”

This amendment would prevent the powers in Clause 8 being used to make provision which could pose a threat to national security.

Amendment 371, in clause 14, page 10, line 26, at end insert—

““law relating to equality or human rights” means—

(a) the Equality Acts 2006 and 2010;

(b) the Human Rights Act 1998; and

(c) other enactments relating to equality or human rights.”

This amendment defines “law relating to equality or human rights” for the purposes of other amendments which would broaden protection provided by the Bill from interference with the Human Rights Act to include other provisions about human rights and equality.

Amendment 372, page 11, line 48, at end insert—

“(7) The Secretary of State may by regulations amend or modify the definition of “law relating to equality or human rights” in subsection (1).”

This amendment would allow Ministers to amend the definition of “law relating to equality or human rights” inserted by Amendment 371.

New clause 76—Non-regression of equality law—

“(1) Any EU withdrawal related legislation must be accompanied by a statement made by a Minister of the Crown certifying that in the Minister‘s opinion the legislation does not remove or reduce protection under or by virtue of the Equality Acts 2006 and 2010.

(2) In subsection (1) “EU withdrawal related legislation” means—

(a) any statutory instrument under this Act;

(b) any statutory instrument made by a Minister of the Crown wholly or partly in connection with the United Kingdom’s withdrawal from the EU; and

(c) any Bill presented to Parliament by a Minister of the Crown which is wholly or partly connected to the United Kingdom’s withdrawal from the EU.”

This new clause would ensure that legislation in connection with withdrawal from the EU does not reduce protections provided by equality law.

New clause 77—Co-operation with the European Union on violence against women and girls—

“(1) Within one month of Royal Assent to this Act, and then once in every subsequent calendar year, the Secretary of State shall lay before Parliament a report on continued co-operation with the European Union on matters relating to violence against women and girls.

(2) That report must include, in particular, an assessment of how, following exit day, co-operation with the European Union will replicate mechanisms which exist within the European Union before exit day to—

(a) maintain common rights for victims of domestic and sexual abuse when moving across borders,

(b) reduce female genital mutilation (FGM),

(c) reduce human trafficking,

(d) reduce child sexual exploitation, and

(e) enable data sharing relating to any of (a) to (d).

(3) The first report made under subsection (1) following Royal Assent must—

(a) include an assessment of the amount and nature of funding provided by European Union institutions to organisations based in the United Kingdom for the purposes of research, service provision, and other activity relating to ending violence against women and girls, and;

(b) outline plans to provide comparable resources for research, service provision, and other activity relating to ending violence against women and girls in the United Kingdom.”

This new clause calls for the Government to lay a report before Parliament laying out how cross-border action to end violence against women and girls will continue after exit day, assessing the extent of current European Union funding for work to end violence against women and girls, and setting out the Government’s plans to provide comparable resources.

[Mr Leslie]

I thought for a minute, Mrs Laing, that you were going to read out all the amendments grouped today, which might have taken up some considerable time.

Today’s debate is about taking back control—about Parliament and the powers of the House of Commons to hold the Executive to account and to overrule it if we wish to do so. New clause 18 essentially says that it is time for the Government to be honest about the extensive and wide-ranging powers they want to take away from Parliament, which essentially is what the Bill proposes to do. Some might say that my new clause does not go far enough, that it is a little tepid: it simply says that the Government ought to commission a proper independent report into the constitutional ramifications and implications of their proposal. In my view, they have not thought the process through properly. They denied the House a pre-legislative scrutiny process for the Bill and, importantly, ignored an extremely detailed and thoughtful report and set of recommendations from the House of Lords Constitution Committee, which went into painstaking detail to review Ministers’ proposals, particularly those in clause 7. It also did so with respect to clause 9—we will not be voting on aspects of clause 9 today, but certain amendments to it have been grouped for discussion.

I accept that if we leave the EU, the acquis—the body of existing EU law—will need to be converted into UK law. We were told, of course, that the Bill was supposed to be a simple “copy and paste” exercise that merely transposed those EU rules under which we have lived for the past 30 or 40 years into UK law. Despite the early recommendations from the House of Lords Constitution Committee, made long before publication of the Bill, back in March, Ministers have made a real error in failing to distinguish between the technical and necessary task of transposing existing laws from EU to UK statute and the wider powers that Ministers are taking potentially to make substantive policy changes, by order, in areas that currently fall within EU competence. In other words, they have not sought to curtail the order-making powers simply to focus on that transposition exercise. The order-making powers go far wider into a whole array of policy making areas.

[Mr Jim Cunningham (Coventry South) (Lab)]

We were told that we were bringing powers back to this Parliament so that this Parliament could take decisions. Why, then, are the Government trying to introduce something similar to the Henry VIII clause? Does it not make a mockery of their promises?

[Mr Leslie]

Exactly. People voting in the referendum might have been moved by that slogan “take back control”, but I do not honestly think many voters thought that that meant taking back control from a European Executive and handing it to Ministers of the Crown, outwith the powers and scope of Parliament to do much about it, yet that is effectively the proposal in clause 7.

I want to emphasise that this is not simply an exercise in transposing technical and necessary measures. The Government have extended the scope of the Bill into policy-making capability, which brings in the question of divergence. We have heard a lot recently about concepts of full alignment and this notion of diverging from rules and policies. The way clauses 7 and 9 have been drafted would allow Ministers, by order, through negative statutory instruments that we rarely get the chance even to vote on in this place, to make policy changes that could affect policy functions and the rights of our constituents—perhaps as part of a deregulating agenda—if that is indeed what the Government of the day sought to achieve.

[Mary Creagh (Wakefield) (Lab)]

My hon. Friend, like me, will have read in the newspapers about the Cabinet split opening up on divergence, with various Cabinet Ministers backing divergence and others not. How does he think this squares with the Prime Minister’s promise to our European partners and the Government of the Republic of Ireland that we will stay in full regulatory alignment after we leave?

[Mr Leslie]

I suspect that the European Commission and the Republic of Ireland Government saw the phrase “full alignment” and thought that full alignment meant full alignment. It turns out from the Prime Minister’s statement yesterday that full alignment does not quite mean full alignment. She said it only meant aligning the areas in the Good Friday agreement protocol, but of course that predates the notion of our leaving the single market and the customs union, so the Good Friday agreement did not cover such narrow issues—I say that sarcastically—as goods and manufacture trade. The list of issues that she thinks full alignment covers does not include trade in goods, which is a staggering thing, because of course if we do not cover trade in goods, we end up with that hard border, which is absolutely the point we have got to.

[Mary Creagh]

rose—

[Mr Leslie]

I do not want to digress at this stage. I want to focus particularly on the powers that Ministers are taking in clause 7, if my hon. Friend will allow me to do so.

[John Redwood (Wokingham) (Con)]

rose—

[Mr Leslie]

I cannot resist.

[John Redwood]

Ministers have assured us that if they want to change policy—if, for instance, they see a need for a new fishing policy, or a new customs and trade policy—there will be primary legislation and full parliamentary debates in both Houses. Does the hon. Gentleman not understand that? We are dealing with a very narrow set of provisions, relating only to statutory instruments to deal with technical matters which, of course, the House can ultimately determine in any event.

[Mr Leslie]

It is touching that the right hon. Gentleman takes those assurances from Ministers at face value, but the Ministers may not be here for very much longer. Who knows? If we are going to make policy changes, that should be done in a Bill that comes before Parliament, or in a statutory instrument subject to affirmative resolution.

I now invite Members to pick up their copies of the Bill, because I want to deal with a couple of provisions in clause 7 which I think contradict the understanding of the right hon. Member for Wokingham (John Redwood) of the scope of the order-making powers that are being taken. It is, in fact, fairly wide. Clause 7(4) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament.”

In other words, a provision in a statutory instrument could have the same effect as one in primary legislation.

[Mr Dominic Grieve (Beaconsfield) (Con)]

When statutes are being considered and Bills are being drafted, there does on occasion come a point at which we must accept that assurances given, for example, at the Dispatch Box will have to complement the inevitable small grey areas. However, that should not prevent us as a Parliament from scrutinising legislation and insisting that, so far as possible, it is drafted in conformity with the purpose for which the Government say that they intend to use it.

[Mr Leslie]

That is why Members often say in the House, “Let us place it on the face of the Bill”, which means “Let us put in writing, in black and white, something that can then be held up in a court of law”, rather than a mere verbal promise from a Minister who, as I have said, could be here today and gone tomorrow. These things matter, and if we are to do our job properly we need to get our statute right.

It is not an exaggeration that clause 7(4) represents a massive potential transfer of legislative competence from Parliament to Government. It is a sweeping power that would make Henry VIII blush if he were to see it today. My amendment 57 would delete the sweeping nature of clause 7(4), because Ministers have not ensured that their powers are as limited as possible; on the contrary, they have ensured that they are as exceptionally wide as possible.

[Tom Brake (Carshalton and Wallington) (LD)]

The right hon. Member for Wokingham (John Redwood) referred to Bills relating to, for instance, trade and customs. Does the hon. Gentleman agree that that those Bills are very likely to contain the very same Henry VIII powers?

[Mr Leslie]

Indeed. There are, I think, eight pieces of subsequent legislation which are also opening up this precedent. Effectively, Members of Parliament are being patted on the head and told, “Do not trouble yourselves. We will sort out all these areas of policy. We will just go away and if you really object, you can petition us about it.” That is not good enough.

Let me now turn to clause 9. We are not voting on it today, but the grouping of the amendments allows us to discuss issues relating to it. Subsection (2) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”

If, having gone through all the rigmarole of debating the proposals that are before us today and made all sorts of promises, Ministers then say, after Royal Assent, “Actually, we did not like that bit of the Act”, they will be taking order-making powers to amend this very provision.

[Hilary Benn (Leeds Central) (Lab)]

It is not just a question of assurances given from the Dispatch Box. In clause 9, Ministers are proposing to take a power that would enable them, after the event, to get rid of what they have described as safeguards in the Bill if they feel like it, by means of the mechanisms provided in that clause. Does that not undermine the confidence that the House can have in those safeguards, given that they may no longer be in the text of the Bill when it becomes an Act?

[Mr Leslie]

It is almost an Alice in Wonderland “down the rabbit hole” concept: the notion that we are passing an Act that hands powers to Ministers to amend not just any other Act of Parliament, but the Act itself. It is completely ridiculous. I know that Conservative Members will say I am making the point because I am sceptical about Brexit or something, but this is a constitutional issue. It is about ensuring that Parliament is sovereign, and that Members of Parliament can override the executive and curtail excessive behaviour. I shall be astonished if clause 9(2) is still there after Royal Assent, because if the House of Commons does not deal with it, the other place will certainly have to do so.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I have some sympathy with the points that the hon. Gentleman is making, but why did he not raise these objections when his own party was passing legislation that could be self-amending in exactly the same way, without a sunset clause—for example, the Scotland Act 1998?

[Mr Leslie]

I am not sure whether there is anything comparable to the sweeping nature of the policy scope of a Bill that says that order-making powers can include powers to modify the Act itself.

[Mr Jenkin]

There is the Scotland Act!

[Mr Leslie]

If that is indeed the case, two wrongs do not make a right, but I do not think that any other provision is quite as extensive as this. The hon. Gentleman’s loyalty to the Government knows no bounds—he has to come to their defence, because it is important for someone to do so—but I think that, in this particular instance, even he may be slightly embarrassed by quite how far Ministers have gone.

Clause 7(1) states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate”.

The term “appropriate” is entirely undefined, and it is the only condition imposed on the Minister’s desire to address “deficiencies” in the law. The House of Lords Constitution Committee has said:

“This application of a subjective test to a broad term like ‘deficiency’ makes the reach of the provision potentially open-ended.”

The Government tabled amendment 391 to try to ameliorate some of the concern about that, but it barely constitutes a concession. It merely requires Ministers to make explanatory statements that provisions are “appropriate” in order to justify the order-making power. It is because it is so broad that I tabled amendment 65, which would at least shift the subjective threshold from “appropriate” to “necessary”. I believe that requiring Ministers to feel that a regulation is necessary would present them with a stronger test and a higher threshold. It would allow them to retain fairly broad powers, but I think that it would provide an extra safeguard. A Minister may think that something is appropriate without having to justify it, and I feel that we should expect more in a Bill such as this. The Constitution Committee has also said:

“We proposed that ‘a general restriction on the use of delegated powers’ could be achieved using ‘a general provision … 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’”.

I followed that advice by tabling amendment 65.

Clause 7(2) implies that the scope of the Henry VIII powers are not exhaustive at all.

That subsection begins with the phrase:

“Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law”

does x, y and z, and it goes on to set out a series of particular conditions.

The right hon. and learned Member for Beaconsfield (Mr Grieve) has also spotted this issue in his amendment 1, and this caveat does not have to be limited to the exceptions set out in clause 7. Again, that provision is too broad and gives too much power to Ministers. Ministers might well say, “Well, it’s not our intention to go beyond the list of prescribed areas in clause 7”, but the Bill as drafted does not constrain their successors; as I have said, there will, of course, always be further Ministers after the current ones have moved on.

13:33

[Mr Grieve]

Does the hon. Gentleman agree that those who draft legislation go off to Government Departments, show the draft and ask whether that covers all the things that need to be covered, and are then inevitably told that the Department is worried that something has not been covered? Perhaps this should be an encouragement to those on the Treasury Bench to go away and think again about whether the list they have produced is not in reality exhaustive. If it is not, perhaps they would like to identify during today’s debate where they think there might be these extra powers that take them beyond the limits they have listed.

[Mr Leslie]

The right hon. and learned Gentleman and any other Member who has had the privilege of serving as a Minister will know exactly what civil servants will advise, which is, “Well, you don’t know the exact circumstances, so seek as wide a power as you can possibly get away with through Parliament, if it will turn a blind eye to it. We can deal with the consequences thereafter.”

Unfortunately for them, Ministers will not be able to get away with that on this occasion, because we have spotted this land grab attempt. It is not appropriate; if they feel that there should be exceptions or that certain circumstances should be accounted for, those must be set out in the Bill, not just left in these current loose terms.

Current Ministers might feel that they are responsible stewards of Government, but I invite hon. Members to imagine circumstances in which we end up with a malign Government of some sort, shape or variety, such as some sort of extreme Administration—who knows what might happen in years to come? These Henry VIII powers are extremely sweeping. They will be available to Ministers in years to come and could leave the door open to some quite arbitrary near-autocratic actions of a future Government.

For example, if a future Government sought to lift the 48-hour working week provisions that EU law currently gives to employees in this country, Ministers would by order potentially have the scope to do that under the powers in clauses 7 and 9. If Ministers wanted to require the banking sector to have more capital requirements under these provisions, they would be able to simply make those orders. If Ministers wanted some sort of aggressive or inappropriate state intervention to distort competition, favouring one producer over others, they would be able to do that through the provisions on these order-making powers.

[Chris Stephens (Glasgow South West) (SNP)]

Does the hon. Gentleman agree that there is a real concern across the UK in relation to workers’ rights, particularly as many in government at present were saying during the EU referendum campaign that the roll-back of workers’ rights was one of the reasons why they advocated a leave vote in the first place?

[Mr Leslie]

The Bill’s provisions are so wide-ranging that the protections that our constituents have enjoyed to this day as a result of European regulations and rights could be at risk—not from Parliament, but from a ministerial sweep of the pen, through the making of an order: a negative statutory instrument.

[Mr Jim Cunningham]

We had a good test of that some time ago in relation to trade union rights, through what the Government did to the Trade Union Bill during its passage through Parliament. Does my hon. Friend agree that the big test will be something the Government are being evasive about: will this Parliament get the final vote? We were told during the referendum campaign that Parliament would have its say and everything would be brought back here, yet the Government are doing everything in their power to avoid giving Parliament the final vote on this.

[Mr Leslie]

The offer from the Government has been a binary yes or no motion at some point when we see the withdrawal agreement, and then—potentially after the fact, post-signature by Ministers—a Bill later on down the line. That is obviously not good enough, but we will come to many of those issues in tomorrow’s debates. For now, there are further deficiencies in the way clause 7 has been drafted to be addressed.

Clause 7(5) talks about the functions and public services that the regulations can amend. The right hon. and learned Member for Beaconsfield has spotted in amendment 5, as I have in amendment 61, that these powers could allow Ministers to sweep away a public service function currently undertaken by an EU agency without making alternative provisions; Ministers have talked about a function being not only “replaced” or “modified”, but “abolished”. Ridiculously, Ministers have snuck in this phrase, under which by order they can abolish a whole area of public service activity through the powers they are granting themselves in subsection (5). That could affect lots of obscure and small areas of public policy that do not matter to all our constituents but will certainly matter to some, including chemical safety certification, medicine risk assessment activities, aircraft airworthiness, preparedness for disease prevention and control, aeronautic research, energy market trading, and maritime pollution.

There are lots of functions that EU agencies currently fulfil. Some Members might say that they should be fulfilled within the UK, which is a perfectly good argument, but clause 7 would allow Ministers to abolish those functions entirely by order. I do not believe that is appropriate, and that is why I think amendment 61 and certainly amendment 5 are necessary.

[Mary Creagh]

My hon. Friend has talked about the many agencies that we currently rely on to regulate all manner and aspects of our national life, but he has neglected to mention the regulatory and enforcement functions carried out by the European Commission and the European Court of Justice. Does he share my concern that, particularly in the environmental sphere—which I will talk about in my speech—removing the Commission as an enforcement body could be very detrimental to standards in all areas of regulation?

[Mr Leslie]

My hon. Friend has done important work as Chair of the Environmental Audit Committee on some of these questions. These are not small matters; they are important functions that over the years we have developed and grown to expect. Some of them are provided by EU agencies, but they should not be able to be abolished simply by order—by the sweep of a ministerial pen—without reference to this place and without the House of Commons having some ability to decide.

[Angela Smith (Penistone and Stocksbridge) (Lab)]

Does my hon. Friend agree that the Government might well find other ways of delivering these functions, but the key point is independence? We need the authorities that deliver these safeguards and regulatory activities to be independent of Government and to be accountable to the people.

[Mr Leslie]

Indeed, and there are good arguments for having independent provision of many of these assessments. We might feel that many regulatory activities currently undertaken by EU agencies need to be undertaken by our regulators here in the UK, rather than being brought into a Government departmental function, to give them that further arm’s-length independent status. I want to talk about some aspects of that shortly.

I want to make reference, too, to the Procedure Committee’s set of amendments that the hon. Member for Broxbourne (Mr Walker) and others have tabled to try to deal with what could be thousands of negative statutory instruments—orders by Ministers that do not automatically come up for a vote in the House of Commons. I totally respect the work of the Procedure Committee, and it is important that it has gone through this process, but I do not believe that the proposed committee would be an adequate safeguard. I do not believe that it would fulfil the concept of what a sifting committee ought to be.

We need a Committee of the House that can look through the hundreds of statutory instruments that are currently not for debate and be able to pick them out and bring them forward for an affirmative decision. The Procedure Committee’s amendments would not quite do that; they would simply create a committee able to voice its opinion about the designation of an order as a negative statutory instrument. That could be overruled or ignored by Ministers. Indeed, if a Minister were to designate such a negative statutory instrument as urgent, it would not even need to be referred to that committee. That is a pretty low threshold, and a pretty weak concession.

[Chris Bryant (Rhondda) (Lab)]

Is it my hon. Friend’s understanding that the committee would have an automatic Conservative party majority, because of the changes to Standing Orders?

[Mr Leslie]

I am not sure whether such a provision exists. Perhaps members of the Procedure Committee will have a view on that. I certainly think that that would be unfortunate.

[Helen Goodman (Bishop Auckland) (Lab)]

We will look at the composition when we look at the Standing Orders. It is not covered in the contents of the amendments today, but people will have an opportunity to debate that issue on another occasion.

[Mr Leslie]

That is true, but it deserves to be debated today as well. If we are creating a committee, it is perfectly legitimate to argue that we need to know whether it will have teeth and exercise bite, or whether it will be reluctant to do so. The question that my hon. Friend the Member for Rhondda (Chris Bryant) asked about its composition is perfectly reasonable.

[Chris Bryant]

For that matter, the Procedure Committee has regularly suggested changes to Standing Orders that the Government have refused to move forward. I have seen the right hon. Member for Broxbourne more furious than anyone else in the Chamber because the Government have refused to act on that, so it is inadequate to suggest that Standing Orders might make arrangements in this regard.

[Mr Leslie]

My hon. Friend’s point is well made. Again, it goes to show that if we are to assert ourselves as the House of Commons and create a committee to deal with this flood of negative statutory instruments, that needs to be done in a way that has teeth. We will debate the Bill and kick it around and it will go to the House of Lords, but we need to ensure that it has teeth when it comes back.

[Several hon. Members rose—]

[Mr Leslie]

I am conscious that a lot of Members want to speak, and I want to get to the end of my remarks.

There are other issues relating to the standard of scrutiny, and perhaps the Procedure Committee will want to think about them as well. Currently, when regulatory policy issues are decided in Europe by EU directive or regulation, the European Parliament—to which our constituents have been able to elect people—has a quite large set of scrutiny and decision-making powers over those laws. If we are moving the law-making power from the EU to the UK, surely we should also replicate the level of scrutiny that those laws received from the European Parliament and have that same arrangement in the UK Parliament. That is not happening in the Bill, however, which is why amendment 277 has been tabled.

I was partly inspired by conversations with the Association of British Insurers, which is concerned about the potential to lose a level of scrutiny as the policy-making powers are transferred across. The UK Parliament’s ability to scrutinise some of these things is not as tough as that of the EU Parliament. The ABI has said that it supports amendment 277, which states that any additional powers transferred to the UK regulators must be matched by equivalent scrutiny mechanisms and democratic accountability. That is not a small point, because a massive array of issues is coming at us thick and fast in clauses 7 and 9, and they have to be mentioned.

Finally, I want to touch on amendment 124, which has been tabled in the name of the right hon. Member for Carshalton and Wallington (Tom Brake). It would prevent regulations from undermining the operation of the single market. The Government have conceded that we are, de facto, going to remain in the single market and the customs union, certainly during the transition phase. It is important that protections should be in place to ensure that orders made by Ministers cannot erode those single market freedoms that we enjoy during the transition period.

Also, if we end up—as I suspect we should—staying in the single market and the customs union, we do not want anything in the Bill that will erode the operation of those important frictionless tariff-free trade arrangements in goods and services that we currently enjoy. Amendment 124 has great merit, and I certainly hope that all Members will consider giving it their support.

13:45

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

My hon. Friend mentions the single market; I wonder whether he noted the research published today by the Rand Corporation in the United States that made it clear that any kind of fantasy deal with the United States while President Trump is in charge would do nothing for us compared with remaining in the single market and the customs union.

[Mr Leslie]

Yes; I think many hon. Members are under the illusion that free-trade agreements are an okay substitute for the single market arrangements that we now have. Our economy is 80% service sector. We take for granted the frictionless movement of goods, parts and components, and amendment 124 would—

[Hon. Members]

Order!

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. If the hon. Gentleman is out of order, I will tell him that he is out of order. Does he wish to convince me that it is in order to speak about this particular matter?

[Mr Leslie]

I absolutely do, Madam Deputy Speaker. Amendment 124 talks about protecting the single market provisions, and that is why, in today’s debate, as well as getting into constitutional areas such as protecting Parliament’s rights, we also have a duty to talk about the single market. The right hon. Member for Carshalton and Wallington’s amendment addresses this point. This is something that many of us feel very strongly about, and we are not going to give up without a bit of a fight.

[Tom Brake]

The point also enables us to remember that this was in the Conservative party manifesto in 2015.

[Mr Leslie]

Who could possibly forget that support for the single market was once a key aspect of Margaret Thatcher’s policy making, as well as the policy of subsequent Governments?

[Anna Soubry (Broxtowe) (Con)]

The hon. Gentleman is right when he says that Margaret Thatcher was pretty much the authoress of the single market. Does he agree that, as trade develops, the best places to do business will be those nearest to us—not those far away, which mean that goods have to be conveyed over huge distances?

[Mr Leslie]

We are putting a lot of effort into trying to get free trade deals with New Zealand, Australia and other countries, and much as I would love free trade deals with all of them, the fact is that our biggest markets are our nearest neighbours. Having that single market and that customs union is incredibly important, which is why amendment 124 should not be dismissed and I believe Members should support it. We also need to pay attention to the powers and rights that Parliament must now assert if we are to ensure that the Executive do not take back the control that many of our constituents thought was coming to their representatives after the referendum.

[Sir Oliver Letwin (West Dorset) (Con)]

As always, I am lost in admiration for the extraordinary eloquence of the hon. Member for Nottingham East (Mr Leslie). It is unfortunate that he has a tendency, as he exhibited on this occasion, to be so carried away by his eloquence as to take arguments that many Government Members also consider important and extend them to the point where they become definitely untrue. This diminishes the force of those arguments. I believe that the Bill is over-drafted—for some of the reasons that he adduced, to give the Government greater scope for dealing with a whole series of problems, in a way that the civil service often recommends to Ministers—but it is not the case that it offers the unconstrained powers that he was suggesting. His world is a world without a Supreme Court, and without judgments of the meaning of deficiency. He alleged that the meaning of “appropriate” was entirely obscure and then used it, by my count, five times himself. We all knew what he meant and so would a court. One does not need to go to the extents to which he was going to point out that the Bill requires some amelioration in respect of the secondary legislation powers, a point which many Members on both sides of the Committee made during an earlier debate. He could have rested with that, which would have taken rather fewer minutes.

I look forward to hearing from my hon. Friend the Member for Broxbourne (Mr Walker), the Chairman of the Procedure Committee, because unlike the hon. Member for Nottingham East I think that amendment 393—if I remember the number correctly—is carefully judged. I think it probably will provide—[Interruption.] I apologise for getting the number wrong; I was referring to amendment 397. In any case, the Procedure Committee’s amendment seems to be the right way to tackle the question of triage, and it is well judged and well drafted. I hope that Ministers will tell us in their responses from the Dispatch Box that recommendations from the Procedure Committee will in this instance always be respected in the House. I do not think that we need to worry about a completely separate set of Ministers dealing with the recommendations, because the recommendations will be made in the coming months. We need a combination of that amendment plus an assurance from the Dispatch Box that the Procedure Committee’s recommendations will be observed, and I think we could rest on that.

[Chris Bryant]

I just worry about this whole business of relying on the Government saying that they will always go by a recommendation that comes from a Committee. Several times I have heard Ministers stand in the Chamber and say that if the Opposition demand a vote on the annulment of a Standing Order, there will always be one. However, over the past few years, there have on repeated occasions been no debates or votes, even when demanded by the Opposition and a large number of Government Members. It is almost sweet of the right hon. Gentleman to place such confidence in Ministers, but they are sometimes not to be trusted. We just put temptation in their way.

[Sir Oliver Letwin]

The hon. Gentleman is a doughty defender of his party interest and of the House of Commons. On this occasion, if such an assurance is given from the Dispatch Box and if the advice of the committee is not followed, people on both sides of the House will cause a sufficient fuss to ensure that the House does have the opportunity to debate instruments under the affirmative procedure.

[John Redwood]

Will my right hon. Friend clear up one other uncertainty created by the hon. Member for Nottingham East (Mr Leslie)? Is it not the case that the powers that we are debating are strictly time limited to two years from the date of departure? This is not a long-term issue.

[Sir Oliver Letwin]

One of the most striking moments of hyperbole was when the hon. Member for Nottingham East asserted that the situation would last for many years. He will of course know, as my right hon. Friend the Member for Wokingham (John Redwood) points out, that the provisions are sunsetted.

[Chris Bryant]

Unfortunately, that is not true because the Government are able to change the Act by statutory instrument.

[Sir Oliver Letwin]

Except of course it is, because if the amendment is accepted, as the Government intend, the committee will be empowered to make a recommendation to have something debated by the affirmative procedure in the House should such an eventuality arise. In those circumstances, if we have an assurance from the Dispatch Box that something will be so debated, the hon. Gentleman and I will be able to join forces to prevent such a thing from happening. That is a genuine lock, and this debate depends on whether we want to engage in party political games or whether we want a serious approach to ensuring ministerial accountability. Amendment 397 is serious, and my hon. Friends and I are keen to ensure that its changes are made. I note that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has also put his name to the amendment, which gives me great comfort that it is a serious effort to cure the problem.

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

On the point made by the hon. Member for Rhondda (Chris Bryant) about amending the Act, which I will refer to in my own speech, I just want to draw the Committee’s attention to paragraph 6 (2)(g) of Schedule 7. For us to amend the Act, any change would have to relate to the withdrawal agreement and its implementation and would be subject to a vote in both Houses.

[Sir Oliver Letwin]

That is indeed true. I suppose that Opposition Members would tend to argue that only the courts could enforce that, which is an oddity with the principle of comity, but I think we are dancing on the heads of pins here. I am confident that the Government do not intend to use that power to get rid of the constraints within the Bill. I am equally confident that the serious issue here is whether significant changes are proposed by the negative procedure and, I repeat, the Procedure Committee amendment seems to handle that serious issue, which is in contrast to the highly hypothetical considerations that have already been put before the Committee.

Amendments 62 and 63 were, in a different form, the subject of some serious discussions earlier in Committee. They relate to how we bring the important environmental principles in the treaty on the functioning of the European Union into English law at the time of withdrawal and to how we replace the useful role that the Commission has played in being an independent enforcement agency for environmental law that is governed by those principles in its procedures and substantive actions.

[Helen Goodman]

Is the right hon. Gentleman referring to new clauses 62 and 63 or amendments 62 and 63?

[Sir Oliver Letwin]

New clauses 62 and 63. I do apologise. I am very bad at remembering the nomenclature, but I know which ones I am talking about. They are the ones that relate to the environment—their proponent, the hon. Member for Wakefield (Mary Creagh), is sitting behind the hon. Lady—and we had a long discussion about them earlier in Committee. Since those discussions inside the House, many of my hon. Friends, including my hon. Friend the Member for Richmond Park (Zac Goldsmith), and I have had considerable conversations outside the House with various people, such as the Secretary of State for Environment, Food and Rural Affairs, green non-governmental organisations and others. I am now confident that the Government will bring forward proper new primary legislation to create an independent body outside the House with prosecutorial powers that will replace the Commission as the independent arbiter to enforce environmental rules and to ensure that the Government are taken to task in court without the need for the expense of class action lawsuits.

[Caroline Lucas (Brighton, Pavilion) (Green)]

rose—

[Sir Oliver Letwin]

May I continue for a second? I may anticipate what the hon. Lady is going to say, but I will give way if I do not.

In addition to such a body being put on a statutory basis, I am confident that included in the relevant legislation will be a direct reference to the principles, so that it is clear that the policy statement, which will be mandated, must look to those principles and must explain how the Government of the day intend to carry forward the principles into action. The policy statement will then become justiciable and will, under the forthcoming legislation, receive support in the form of a resolution of this House and will therefore attain a statutory force of its own.

[Caroline Lucas]

rose—

[Mary Creagh]

rose—

[Sir Oliver Letwin]

I will give way to both hon. Ladies, but I will just say one last thing in case they were going to make this point. Many people have raised the question of whether all this work will be done in time—I see the hon. Member for Brighton, Pavilion (Caroline Lucas) nodding and I suspect that she will want to raise that point—and I see that if there was doubt about whether it was, that would be a reason for legislating here, as opposed to waiting for a proper new statute. I am delighted to say that we have talked sufficiently to Ministers to be confident that they will be bringing forward both the consultation and the legislation in time to ensure that it is in place before we exit the EU. Of course, I would also want to wait until January to see the consultation to ensure that that engagement is fulfilled, and I am sure that the other place will want to look at what is said in the consultation and to assure itself that the new statute is coming forward before it consented to allow this Bill to proceed without the amendments that are being proposed. I believe that the right way to do this is in separate legislation. It is not about this business of Brexit; it is about trying to get the right answer for the environment. It is much better that we should do that in a fully fledged Bill that will be properly debated and contains all the relevant provisions and powers, which will never shoehorn into this Bill. I genuinely believe that that is the best way forward.

14:00

[Caroline Lucas]

I am pleased about the measures that the right hon. Gentleman outlines, to which the Government are apparently committed, but I am still worried about time, and I do not share his confidence that, given the amount of business that the Government have to get through in a small amount of time, we can be absolutely sure that the new body will be in place in time. Why can we not have a belt-and-braces approach? I agree that the Bill is not the ideal place to put such a provision, but it is an awful lot better to have it in the Bill than nowhere. I do not share his confidence that it will definitely get through Parliament in time otherwise.

[Sir Oliver Letwin]

I do not suppose that I will succeed now in persuading the hon. Lady. I do not wholly disapprove of the idea of her and others pursuing aggressive amendment tactics here and in the other place to ensure that the Government continue to respond effectively and rapidly. Once the consultation paper emerges and the Secretary of State has made further statements about this, and once legislative time has been allocated in the Parliamentary Business and Legislation Committee, assuming it is still called that, we will have that confidence. I would prefer to rest on that, because it would be at the least inelegant and possibly positively damaging to pass one piece of legislation and then introduce another that repealed or amended it. That sounds to me like a recipe for confusion.

Should we become sceptical at a later date about whether the Government will bring separate legislation forward, it would be open to the House of Lords to table amendments in the other place, which would come back to us. I, for one, would want to see those amendments made if the Government did not intend to put something in place before EU exit day. I am currently confident that they will, and that is the only basis on which I will not be voting for the new clause this evening.

[Mary Creagh]

I do not share the right hon. Gentleman’s confidence that all this will be done in time, and I share the concerns of the hon. Member for Brighton, Pavilion (Caroline Lucas). We have been waiting two and a half years for a 25-year environment plan, which will be a 22-year plan by the time it is published. We have had promises of legislation on fisheries and the common agricultural policy, and today a draft animal sentience and animal welfare Bill has been published. There is already a legislative logjam in the Department for Environment, Food and Rural Affairs as a result of the decision to leave the EU, and at the moment there is a reporting gap. Although there may be a new body in the future to do some of the enforcement, I do not believe that it will be up and ready at the point of leaving, when all our reporting obligations, which currently rest with the European Commission, will fall.

[Sir Oliver Letwin]

There are quite a lot of bits to unpack in that. If we were to leave without an agreement and hence without a transition period, there would be some merit in her observation, although the gap would be short if the new body had been legislated for by the time we left. If the Government’s plan succeeds and there is a transition period, we will no doubt be bound by the current rules during that period so there would be two full years in which to establish the new body. It is not likely that the hon. Lady’s concern on that front will be realised in practice, although I admit some theoretical possibility of it.

The hon. Lady adduces a legislative logjam in DEFRA. I accept the facts that she presents, but I see them exactly the other way round. We have a Secretary of State for Environment, Food and Rural Affairs who is probably the most powerful one we have had for a long time, for various reasons of which hon. Members on both sides are acutely conscious. He is probably more committed to this agenda than any we have seen in recent times in either Administration—[Interruption.] I am conscious that the right hon. Member for Leeds Central (Hilary Benn) will inevitably cavil slightly at that, and I respect his record. I genuinely believe that the current Secretary of State is even more devoted to the environment than he was.

An awful lot of DEFRA legislation will inevitably have to be brought to the House before exit. No Environment, Food and Rural Affairs Secretary and no Government could resist it. One cannot exit the EU without solving the problems of the common fisheries policy and the common agricultural policy so there is a natural legislative slot, and this powerful Secretary of State will be more than capable of bringing before the House the relevant statutory provisions. They will not be simple; they will require mature deliberation in both Houses. I am sure we all agree that it is incredibly important that we get the provisions exactly right. We need to make sure that it is a genuinely watertight system, with a set of policies that apply, that the court will enforce and that can be brought to court by an independent body. We need to ensure that the independent body is genuinely and completely independent of the Government, that it can bring Ministers to court, that it is properly funded and staffed and that it looks at the way in which the principles are applied through the policy statement in practice.

I believe that if all that can be done in a proper statute, it would be not just a replication of where we have been, which is now much lauded but was in practice very imperfect, but a huge advance on that. We would have a more comprehensive enforcement of a better environmental legislative framework than any country on earth. That is a goal worth striving for in a proper Act, instead of trying to shoehorn into this Bill a set of new clauses and amendments that are well intentioned but cannot perform the same purpose.

[Zac Goldsmith (Richmond Park) (Con)]

My right hon. Friend makes a brilliant speech. [Laughter.] I cannot disagree with a single word that he has said. I strongly agree with him. The main sticking point is not the aspirations of the Secretary of State to build an independent body that is sufficiently resourced to hold the powerful to account in the way that he has described. The issue is timing and trust. Exactly the same arguments were used just a couple of weeks ago in relation to animal sentience. Sceptics in the House questioned the commitment of the Government to deliver a sentience Bill and said that if it was delivered, it would be a watered down version. We have proof this morning of the Government’s intent; we have a sentience Bill that goes way further than anything in EU law. It applies to all animals, all sectors, all parts of government. It takes us forward in a dramatic and meaningful sense, and that is what I hope we can expect from the initiative of the Secretary of State. I apologise for speaking for so long.

[Sir Oliver Letwin]

I agree with my hon. Friend. He is being unduly modest, because in large part it is due to pressure from him that the Government have introduced such an effective and incisive Bill in a timely fashion. I agree that that gives us considerable confidence about what will happen on this other, even wider ranging matter.

[Caroline Lucas]

I am pleased to see the change on animal sentience, but to correct the hon. Member for Richmond Park (Zac Goldsmith), the debate a few weeks ago was about whether we needed new legislation to provide for animal sentience when we left the EU. The Minister stood at the Dispatch Box and said that we did not need new legislation as it was already covered by existing UK domestic legislation. So I am pleased to see a screeching U-turn, but let us not pretend that it was not a screeching U-turn.

[Sir Oliver Letwin]

I have steadfastly resisted for 21 years engaging in meaningless partisan debate, and I am not going to abandon a career’s worth of effort in that direction to answer that point. Animal sentience is built into English law in various ways already, but the new Bill will vastly strengthen the position compared with what it is today under European law. That is a huge advance for our nation, one that many people on both sides of the House can be happy with. As my hon. Friend the Member for Richmond Park was pointing out, there is an exact parallel with what we and the Government are seeking to do in relation to environmental regulation. I really believe that if we could lay aside both the inevitable divisions about Brexit itself and the inevitable play of party politics, and simply focus on what is going to do the best thing for our environment, we would see that the programme we have before us is a huge advance and one we should gratefully welcome.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Laing, and to follow the right hon. Member for West Dorset (Sir Oliver Letwin). I rise to speak to new clauses 63 and 1, amendments 32 and 25, which stand in my name and those of my right hon. and hon. Friends, and amendments 342, 333, 350, 334 and 33 to 41.

For the purposes of clarity, I intend to break my remarks down into three parts. I will first speak to those new clauses and amendments that relate to the purpose, scope and limits of clause 7. I will then turn to those that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities. I will finish by turning to new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers provided for by not only clause 7, but clauses 8, 9 and 17.

I turn first to the purpose, scope and limits of clause 7. As I said when winding up for the Opposition in the debate on Second Reading, the delegated powers conferred on Ministers under clause 7, and clauses 8, 9 and 17, are extraordinary in their constitutional potency and scope. They are, to put it plainly, objectionable and their flaws must be addressed before Third Reading. As such, when it comes to the correcting powers provided for by clause 7, what we are debating is not whether there is a need to place limits on these powers—that, I hope, is beyond serious dispute. What is at issue today, and what I intend to cover in the first part of my remarks, is what limits should be placed on these powers and why.

Just as 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, we also understand, in light of the legislative reality that must be confronted between now and exit day, that no Government could carry out this task by primary legislation alone. We therefore accept that relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary are, and will be, an inevitable feature of the Bill. Given how much EU and EU-related law has been implemented through primary legislation, we also recognise that the Bill will have to contain Henry VIII clauses. We appreciate that there is a difficult balance to be struck between the urgency required to provide legal continuity and certainty after exit day and the equally important need for safeguards to ensure we maintain the constitutional balance of powers between the legislature and the Executive.

We also believe, however, that to the extent that relatively wide delegated powers are necessary, they should not be granted casually and where they are granted they should be limited, wherever possible, and practical. That is particularly important given how remarkable the correcting powers provided under clause 7 are in their potency and scope. On their potency, it is important to recognise that the Henry VIII powers contained in clause 7 are of the most expansive type. As has already been noted by my hon. Friend the Member for Nottingham East (Mr Leslie), clause 7(4) makes it clear that the power granted by subsection (1) can be used to enact regulations that make any provision that could be made by an Act of Parliament, and clauses 8(2) and 9(2) make equivalent provision in respect of the powers conferred by both those clauses.

These are extraordinary powers, for if it is possible for regulations made under clause 7(1) to make any provision that could be made by an Act of Parliament, that must extend logically to amending or repealing any kind of law, including provisions in other Acts, in the context of wide-ranging purpose of the clause: to remedy any deficiencies that arise in retained EU law. Furthermore, paragraph 1(2)(8) of schedule 7 explicitly confirms that the powers in clause 7 can be used to create powers “to legislate”. As the powers can be used to do anything that could be done by Act of Parliament by means of subsection (4), the Bill itself can be used to create further Henry VIII powers. As such, if this Bill is passed unamended, we face the prospect of Ministers—perhaps not this Minister or Ministers in this Government—having the ability to use the Henry VIII powers in this Bill to confer further such powers upon themselves or other UK institutions; we are talking about delegated legislation piled on top of delegated legislation. That is an outcome that no Member of this House should regard as an acceptable prospect, but it is possible using the powers conferred under clause 7, as drafted.

14:15

As with so much of the Bill, this House is being asked again and again to take it on trust that Ministers will not abuse these powers. Frankly, Labour Members are not willing to take anything on trust and no hon. Member should be. The constitutional potency of the delegated powers in clause 7 is matched by their extraordinary scope. I accept that that scope is not limitless—they are subject to certain express restrictions as set out in clause 7(6), but those restrictions are limited. Even with those restrictions in place, what could be done by Ministers using these powers remains extremely broad, not least because of the imprecision of the language used in subsection (1) and its subjective nature in key respects.

First, as my hon. Friend the Member for Nottingham East has mentioned, subsection (1) states that the Minister may make

“such provision as the Minister considers appropriate”

to address a deficiency in retained EU law arising from withdrawal. I listened carefully to the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker), last week when he defended this wording as it related to schedule 2, on the grounds that to replace “appropriate” with “necessary” or “essential” would be unduly restrictive, could be interpreted by a court to mean logically essential and would therefore limit the discretion Ministers need in cases where two or more choices on how to correct retained EU law are available. But Ministers must accept that the subjectivity inherent in the choice of the word “appropriate” remains a concern across this House and they need to further elaborate, not only on why its use would not render the power in clause 7 open-ended, but on why the Government chose to use the phrase “where necessary” in their White Paper on the Bill, published in March—this is at paragraph 3.7. We need to know why that has changed and why Ministers now believe that “appropriate” and not “necessary” is the right language to use in the Bill.

[Chris Bryant]

We might think that the most extreme legislation that would be on the statute book allowed for emergency powers. The Civil Contingencies Act 2004 makes it absolutely clear that, when Henry VIII powers are to be used, the Minister must explain why they are important, why they are necessary and that they have met an appropriate level of proper jurisdiction beforehand, but none of that is available in the Bill. Is it not therefore important that we have measures such as amendment 17, which adds to the clause?

[Matthew Pennycook]

Absolutely. My hon. Friend spoke powerfully about this matter on Second Reading, and he is right in saying that the scope of the powers in this Bill is not narrow, as some Conservative Members have argued; these powers are extraordinarily wide and unprecedented in the post-war period. I struggle to find other examples of Acts that have drawn their powers this wide.

Secondly, and perhaps more concerning, clause 7(1) will allow Ministers to make such regulations as they consider appropriate for the purpose of preventing, remedying or mitigating

“(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law”

arising from exit. What is meant by the entirely subjective phrase “operate effectively” is left entirely open, a point rightly highlighted by amendment 15, which stands in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) and others. What is meant by deficiencies is more precisely defined, but clause 7(2) still only provides a non-exhaustive set of examples of what is considered to fall within this category. As such, it leaves Ministers with considerable latitude in determining when retained EU law contains a deficiency. The explanatory notes to the Bill seek to reassure us that the power could not be used by a Minister just because he or she considered the law in question to be flawed prior to exit. Today’s Minister will no doubt repeat that it is not the Government’s intention to use this Bill to make major policy changes or to establish new frameworks in the UK beyond those which are necessary to ensure we have a functioning statute book on exit day. But in the absence of a definitive criteria of what constitutes a deficiency, or, indeed, restrictions on how deficiencies might be addressed in the Bill, there is still scope for the Executive to enact substantive changes to policies in areas that were previously underpinned by EU law, whether by lowering permissible air quality levels or modifying crucial employment protections.

[Stephen Doughty]

I thank my hon. Friend for his excellent forensic examination of what is at fault in the Bill. Does he agree that there is deep suspicion and mistrust because we have heard speeches from Members who might seek to form the Government at some point—particularly the hon. Member for North East Somerset (Mr Rees-Mogg) and others—who have made it clear that they want a deregulated race-to-the-bottom economy and society? It is all very well to have assurances from the current team of Ministers, but what if others were in their place?

[Matthew Pennycook]

That is precisely our concern. We discussed that at length on day 2 in Committee, when we were talking about the need for enhanced protection for retained EU law because it will be stripped away from its underpinnings in EU law post-exit.

A further concern about the language in clause 7(1) is that, given how wide clauses 2, 3 and 4 are in respect of what will come under the umbrella of retained EU law, Acts of Parliament that are linked to EU law, such as the Equality Act 2010, will be susceptible to change by statutory instrument under the clause. That would be an entirely unacceptable situation. There are many different ways in which the constitutional potency and scope of the correcting powers provided under clause 7 can be circumscribed, and we support many of the amendments tabled to the clause that share that same basic underlying objective.

Amendments 32 and 25 are the means by which my right hon. and hon. Friends and I have attempted to limit those correcting powers. Amendment 32 would diminish the potency of the delegated powers in the clause by removing the ability to modify or amend the Act itself. I listened to what the Minister said about the schedules and how they dictate things, but I would argue that there seems to be a difference—if Members wish to direct their attention to it, this is on pages 39 and 43 of the Bill—between the process that applies to clause 7 and that which applies to clause 9, with respect to whether a vote in the House would be required for Ministers to amend the Act itself. Perhaps the Minister will elaborate further on that in his response.

Amendment 25 would reduce the scope of the powers by constraining their capacity to reduce rights and protections, while amendments 350 and 334 would buttress amendment 25 by putting specific limits on the powers in question by requiring Ministers to pay full regard to the animal welfare standards enshrined in article 13 of the treaty on the functioning of the European Union and to guarantee that the air quality standards and protections that are currently underpinned by EU law are maintained in practice following our departure.

Given how widely drawn the powers in clause 7 are, coupled with their potency and scope and the inherent subjectivity of the language in subsection (1) in key respects, ministerial assurances and promises to go away and have a cosy chat, as we have had on other days, are not good enough in this instance. The powers entail a significant transfer of legislative competence from the legislature to the Executive and open up the real possibility of substantive changes being made in policy areas that previously were underpinned by EU law. Restrictions on the powers must be placed in the Bill, whether through amendment 32 or 25, or some other combination of amendments. I look forward to hearing from the Minister not only that the Government now accept as much but what they intend to do about it.

On the new clauses and amendments that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities, Ministers have been at pains to point out throughout this process that many of the corrections to retained EU law made under the correcting power in clause 7 will be mechanistic, textual or technical in nature. That will undoubtedly be the case, but many others will not be. As other Members have noted, the powers in clause 7 allow for not only the creation of new UK public authorities using the affirmative procedure but the transfer of EU regulatory functions to existing UK institutions using the negative procedure. However, in neither case does the clause 7 power as drafted ensure that retained EU law will be made operable in ways that replicate and maintain, in so far as is practical, all the existing powers and functions exercisable by EU entities. As a result, the clause does not guarantee that the powers and functions of entities such as the EU Commission or other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day.

Amendment 342 would address the problem by making it clear in the Bill that regulations to which subsection (5) applies must, again in so far as is practical, ensure that the standards, rights and protections currently maintained by EU institutions, or other public authorities anywhere in the UK, continue to exist in practice after exit day and that the UK competent authorities that are overhauled or created for that purpose have the resources, expertise and independence required to carry out their task effectively. That they do so is crucial not only for legal certainty and continuity and to ensure continued confidence in UK products and services, but as a guarantor of stability and redress for citizens and civic bodies in key areas in which there is a clear risk that Brexit will leave a governance gap.

The need for such an amendment is particularly important when it comes to the environment. I take the point made by the right hon. Member for West Dorset that we discussed this matter in Committee at length on other days. Of course, it relates intimately to the environmental principles, although they are outside what is covered by clause 7. We have tabled new clause 63 to require the Government to establish new domestic governance arrangements, following consultation, for environmental standards and protections and, crucially, to ensure that the new arrangements provide robust enforcement mechanisms when environmental requirements and standards are not met.

The Government’s thinking about this policy area has clearly moved on from their early insistence that existing regulatory bodies, parliamentary scrutiny and the use of judicial review alone would be sufficient to provide oversight of Government and public body conduct. The pledge by the Secretary of State for Environment, Food and Rural Affairs to create a new environmental watchdog and to consult early in the new year on its scope, powers and functions is welcome, but as things stand we have no clear indication of the watchdog’s scope, powers and functions; no clarity on whether the Government are seeking agreement with the devolved Administrations with a view to implementing similar measures in their jurisdictions; and no sense of whether or not the watchdog will be able to levy credible sanctions or provide for effective enforcement of breaches.

[Sir Oliver Letwin]

Before the hon. Gentleman moves on, I think what he says about the devolved authorities is incorrect. As I understand it, the Secretary of State made it perfectly clear that, if possible, he would like the devolved Administrations to come along with the process and share in the institutional framework. Of course, that is not a decision he can make; it is up to the devolved Administrations.

[Matthew Pennycook]

I am happy to take that on board. I learn more about Government environmental policy from the right hon. Gentleman than I do from his Front-Bench colleagues, so I happily stand corrected.

[Mary Creagh]

What the Secretary of State announced to the Environmental Audit Committee on 1 November was the beginnings of an idea. During that evidence session, the one new environmental body morphed into four potential environmental bodies, which have yet to morph into a consultation, which has yet to be published. At the moment, we are chasing chimeras—I do not know whether I have pronounced that correctly. [Interruption.] I thank the genius of the group, my hon. Friend the Member for Rhondda (Chris Bryant), for helping me with my Greek pronunciation. What I have described stands in stark contrast to the hop, skip and jump on the animal sentience legislation that has been rushed out before Christmas—the triple jump on animal welfare legislation. The issues relating to devolution are further complicated by the promise to the Republic of Ireland on full regulatory alignment on agriculture, water and waste, which is now going to continue regardless.

[Matthew Pennycook]

My hon. Friend makes a series of good points. I do not take the Government’s commitment in this policy area lightly and I do not take issue with it. What is at issue is the scope and powers of the watchdog and the timing. I share the concerns expressed by my hon. Friend and by the hon. Member for Brighton, Pavilion (Caroline Lucas) about whether the new watchdog will be up and running in time and whether it will have the powers necessary to carry out the same functions as the institutions and agencies that currently exist.

New clause 63 would ensure that robust new domestic governance arrangements for environmental standards and protections were in place before exit day. It would also ensure that the body tasked with filling the governance gap was established by primary legislation before that date and that its scope, powers, functions and institutional design were shaped by public consultation.

[James Heappey (Wells) (Con)]

Before the hon. Gentleman moves on, I am interested to understand whether the purpose of new clause 63 is a UK-wide set of policies that would apply in Scotland and Wales, which would therefore remove a competency on the application of environmental law from the Scottish Government to Westminster.

[Matthew Pennycook]

The scope of new clause 63 is for the environmental watchdog in England, as we have already said. There would have to be agreement between the devolved Administrations and the UK Government about whether they choose to take the same approach.

[Mary Creagh]

One point that my Committee has specifically made on the devolution settlement is that business does not want to deal with four regulators setting up four different sets of rules and regulations on waste, on water and on chemicals. It wants one set of regulations to deal with, and it has made it consistently clear that the set of rules that it would like to continue to abide by is that set by the European Union.

14:29

[Matthew Pennycook]

I absolutely agree. The devolved Administrations, as my hon. Friend has reminded me, agree that they want to take a UK-wide approach to this issue, but it would have to be an agreement.

Let me turn now to those new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers set out in schedule 7(6). It is clear that the vast majority of hon. Members and the Government have accepted that the House’s current procedures for scrutinising negative and affirmative instruments are not acceptable. The hundreds of SIs that will flow from clauses 7 to 9 and 17 need something different. It is encouraging that Ministers have listened and have made it very clear that they intend to accept the amendments in the name of the hon. Member for Broxbourne (Mr Walker) and other members of the Procedure Committee. We welcome those amendments and the establishment, as our new clause 1 proposes, of a parliamentary Committee to sift or triage regulations, and we support their incorporation in the Bill. Frankly, it is better than nothing, but it is the minimum of what might be expected, and we do not believe that they go far enough.

Amendments 397 and 398 propose that every SI made only via the negative procedure will be sent to the new Commons committee for consideration, with the committee determining within a 10-day window which ones would be required to be made under the affirmative procedure. That is an improvement on the arrangements proposed in this Bill as it stands, because it provides for discretion beyond the very narrow category of regulations attracting the affirmative procedure currently set out in schedule 7, and it will ensure that Ministers will not have unfettered discretion to decide whether the affirmative or negative procedure should apply in cases where an exercise of powers does not fall within one of the categories set out in the Bill.

Ministers must justify why the new committee will not be tasked with looking at SIs made under the affirmative procedure, or with examining the justification for using the SI in question to remedy a particular deficiency in EU law. Importantly, they must justify why, in urgent cases, which I know is a phrase that is undefined, Ministers can simply bypass the committee. Lots of these matters will be dealt with under Standing Orders, but it is right that we press for some clarity today. I hope that the Minister will provide further clarification on the composition of the new committee, in particular whether, as proposed in our new clause 1, the chair will be elected by the whole House and will be, and will be seen to be, independent of the Government. Ministers must further explain why they do not believe that the new committee should have the powers to recommend revisions to individual SIs.

Amendments 397 and 398—here I stand to be corrected by the hon. Member for Broxbourne or others on the Committee—make no such provision for revision. In this respect, they differ in a crucial aspect from the proposals set out in the Procedure Committee’s interim report of 6 November, which, while not providing for a formal mechanism for revising secondary legislation, did suggest a process by which a request could be made to Ministers to revoke and remake any particular SI underpinned by the scrutiny reserve. Without provision for this House to request, in certain limited cases, that a particular SI be revised, hon. Members will face a Hobson’s choice—take it or leave it with regard to regulations that may entail highly significant policy choices and have potentially serious or far-reaching implications, with “leave it” in these circumstances meaning a hole in the statute book.

Our amendments 33 to 41 make it clear that any new sifting committee that is established must be given the means not only to determine the level of parliamentary scrutiny that each SI is accorded in proportion to their significance and policy implications, but to make recommendations as to how particular SIs might be improved by revision—if necessary if only by means of the committee in question recommending that an instrument either be withdrawn and re-laid in a more acceptable form or, if a negative, be revoked and remade.

I wish to touch on one last issue: when it comes to the effective scrutiny of secondary legislation, it is crucial, as my hon. Friend the Member for Rhondda (Chris Bryant) has argued, that long-standing parliamentary conventions are adhered to. Even after the process of sifting undertaken by the new committee, SIs subject to the negative procedure can only be annulled if the Government of the day themselves allow time for the House to debate the matter and to have a vote on it. Yet, as my hon. Friend pointed out today and on Second Reading, the Government have consistently refused in recent years to honour that convention, just as they no longer honour the convention that Opposition day motions are voted on. We have a very recent example that illustrates how this Government have used delegated powers not just to avoid parliamentary scrutiny, but to legislate in open defiance of the will of the House in relation to the matter of tuition fees. The original Act in question with regard to that matter allowed any statutory instrument raising the tuition fee limit to be annulled by either House, and assurances were given by Ministers in both the previous Labour Government and the coalition Government that any such SI would be taken on the Floor of the House.

By contrast, this Government prevented any vote whatever on the matter, and then refused to accept the vote of the House against the regulations. When they tabled the regulations the day before the 2016 Christmas recess, the Opposition prayed against them on the first sitting day this year, but despite the conventions of the House, the Government dragged their feet for months until eventually conceding the point and scheduling a debate on 18 April. Then Parliament was dissolved for the election.

After the election, the Government stalled and it was left to my hon. Friend the Member for Ashton-under-Lyne (Angela Rayner) to secure parliamentary time using Standing Order No. 24. Eventually, we had to provide Opposition time on an Opposition motion to revoke the regulations, which the House agreed, only for the Government to refuse to accept the result, after telling Government Members to boycott the vote. Therefore, when Ministers say that Parliament still has a meaningful say on delegated legislation, there is a catch—and it is a Catch-22. They can refuse time for a vote within the 40 days, then say that it is too late for any vote to count once the deadline has passed.

This Bill includes powers that not only open up the very real possibility of substantive changes being made to policies in areas that were previously underpinned by EU law, but to amend primary legislation. If the Government are willing to ignore so flagrantly the conventions of this House when it comes to an issue as controversial and as important as university tuition fees, why on earth should this House assume that those conventions will be honoured when it comes to Brexit legislation?

[Stephen Doughty]

My hon. Friend has made an absolutely essential point. Fundamentally, does he agree that if this process is to be about taking back control, it must be about Parliament and the representatives of the people taking back control, not a Government, and certainly not a minority Government, taking back excessive powers?

[Matthew Pennycook]

I could not agree more with my hon. Friend. That is why strengthened scrutiny procedures for approving secondary legislation made under this Bill are so important, and it is also why long-standing conventions must be honoured, so that in the rare cases where the Committee might recommend an SI be subject to the negative procedure but the Opposition disagrees, there is a chance to bring the matter before Committee.

[John Redwood]

This debate is very important. As someone who wants this Parliament to take back control on behalf of the sovereign British people who voted in that way in the referendum, I can see that there is an irony in this debate. We hear that a number of Opposition Members are very worried that Ministers will have too much power as a result of this legislation, but by the very act of our having this debate, and in due course the votes, on how we should proceed, I think that we are demonstrating that, indeed, Parliament is taking back control. The purpose of these debates today and tomorrow and the subsequent votes will be for Parliament to set a very clear framework within which Ministers will have to operate.

We are, after all, debating how we translate a very large burden of existing European law into good United Kingdom law in order to ensure continuity and no change at the point when we exit the European Union. This is a task that unites people of all political persuasions, whether they were in favour of leave or remain, around the need for legal certainty. We all see the need to guarantee that all that good European law under which we currently live will still be there and effective after we have left.

We also agree something else: some of us do want to change some of those laws. I want to change the fishing law very substantially, because we could have a much better system for fishing in this country if we designed one for ourselves. We will probably need to amend our trade and customs laws, because as we become an advocate for and an architect of wider free trade agreements around the world, that is clearly going to necessitate changes, which we think will be positive. I think we all agree that where we want to change policy—to amend and improve—we should do so through primary legislation. As I understand it, Ministers have agreed with that. I am sure that this House is quite up to the task of guaranteeing that Ministers will indeed have to proceed in that way, so that we know that when they wish to change—amend, improve or even repeal—policy, they will need to come through the full process of asking for permission through primary legislation.

Today we are talking about the adjustments, many of which are technical, that need to be made to ensure the continuity of European law when it passes from European jurisdiction to the jurisdiction of the United Kingdom Parliament and courts. Ministers will obviously play up the fact that they think most of these matters will be very technical, such as taking out the fact that the UK is a member of the European Union when we exit and rewriting the legislation to point out that we are no longer a member of the European Union, or decreasing the number of members states by one from the current number if they are referred to in the regulation. More difficult will be the substitution of a UK-based body for a European body to ensure proper enforcement. Many of us see that as largely technical, although there may be wider issues. This Parliament is now properly debating how much scrutiny that kind of thing would require.

We have three possible models to ensure parliamentary sovereignty over any of these processes. The weakest is the negative resolution procedure, whereby Ministers will have to make a proposal for technical changes to the law, and Parliament will have to object and force a vote if it wishes to. The middle model is the affirmative resolution statutory instrument, whereby Parliament will have a debate and a vote; Ministers would make a proposal and we would have a vote. In some cases, we might even conclude that we need primary legislation, as it appears we are deciding with the issue of animal welfare. In that case, we wish not only to transfer the European law but to ensure that it is better in British law, so that will need primary legislation.

Today we are debating how to determine which of those processes are appropriate for each of the different matters that arise. A lot of items will definitely be in the technical area of rather minor changes just to ensure that things work smoothly, which is what I thought the Government were trying to capture in clause 7. We have heard from Opposition Members who think that the clause goes too far and will allow the Government to elide matters from the category of technical changes to the category where there are more substantial changes going on, and still leave us with the negative resolution procedure. I am not as worried as some Opposition Members. The power under the clause is a two-year power only, so it is clearly related to the translation and transition period, which I find reassuring. There are also clear restrictions in clause 7(6) on Ministers changing taxes, inventing criminal offences and all those kinds of things, because they would obviously require primary legislation. We need to continue our debate on whether those two lists—the list of permissive powers and the list of restrictions—are the right lists.

[Chris Bryant]

I have been listening very carefully to the right hon. Gentleman. He is resting on the word “technical”, which he has used repeatedly, but that is not what the Bill says. If the Government had come forward with something saying that they will only be able to use secondary legislation in technical changes, we might have been interested in looking at it. But that is not what it says; it is a widely drawn list. The right hon. Gentleman may well have perfect confidence in the Under-Secretary of State for Exiting the European Union, the hon. Member for Chipping Wycombe. Sorry, he is the hon. Member for Wycombe (Mr Baker)—[Laughter.] Well, the constituency used to be Chipping Wycombe. The right hon. Member for Wokingham (John Redwood) might have confidence in this particular Minister, but it may one day be another Minister. I suspect that the right hon. Gentleman thinks that the Leader of the Opposition is a Marxist revolutionary in a Venezuelan style. Well, he might yet be a Minister who will be making precisely these decisions, and that is why we should always legislate with caution.

[John Redwood]

I am intrigued to hear that characterisation of the hon. Gentleman’s leader; it is not a phrase that I have ever used in this House. I find that very interesting, but I do not want to take the conversation into that party political realm.

We are trying to explore the proper constraints and controls to put on Ministers through this primary legislation, which will drive our democratic processes for this transfer of law. I look forward to hearing the Minister’s response because I want reassurances—of the kind I think he will be able to give me—that this power is well meant and is designed to prevent Parliament from being clogged up with literally hundreds of rather minor drafting changes. Such minor changes are simple consequences of going from being a member to being a non-member that we do not need to worry about too much, so we need somebody to do them for us. The Bill says that Ministers are going to do it for us. Various Members are a bit sceptical about that for some surprising and interesting reasons, such as that we have just heard. There is also a suggestion, which has a lot to recommend it, that there be a sifting mechanism so that Parliament is involved in the process and can say to Ministers, “We do think this matter is a bit more than technical, so we cannot have the negative resolution procedure. This has to be a proper debate and a proper vote in order to preserve parliamentary process.”

14:45

[Mary Creagh]

On that point, does the right hon. Gentleman think that the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which was published today, is a technical measure or something that merits scrutiny on the Floor of the House—and, ditto, the new environmental body that has been proposed by the Secretary of State for Environment, Food and Rural Affairs?

[John Redwood]

As I understand it, that decision has been made for me. I have not yet had the advantage of reading the draft Bill, so I cannot give the hon. Lady my personal view, but the Government’s view is that it is primary legislation. They think that even though that Bill is reaffirming practices in European law, because the Government think that it is going a bit further than European law, they have quite properly said, “We must make this primary legislation.” The example makes my case rather well that the Government are being cautious because they are trying to reaffirm and go a bit further than European law, probably in a direction that most people in the House would be entirely comfortable with. But the House will have the benefit of going through the full processes of primary legislation. I hope that there will be other examples like that, where Ministers recognise that there could be changes of substance that will warrant either primary legislation or a statutory instrument.

I do not want to take up too much time because many people wish to speak, but I would like to pick up on something that the Labour Front-Bench spokesman, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), started to mention and which I found very interesting. He drew our attention to the way in which we handle statutory instruments in the House in general. There are occasions when it is a weakness of our procedures that we cannot amend a statutory instrument, and we need to think about this for the future. This issue does not arise just from the transfer of European law; it goes to the fundamental business of how we generally exercise control and ensure that legislation works.

I remember being on a statutory instrument Committee under the previous Labour Government for an SI to regularise a series of payments to councils because the Government had been a bit late in giving themselves the legislative permission to make the payments—there was a surprise. I realised as soon as I read it that somebody had put in the statutory instrument the full amounts of money involved, and someone else had come along and put, “£millions” across the top of the table, so we were actually invited to vote six extra noughts on every figure going to the councils.

I am a generous man, but I thought that that was a bit excessive because it meant that the sums were probably bigger than the GNP of the country. If not, they were certainly approaching the GNP of the country in a rather alarming way. I was regarded as a bit of a nuisance for pointing this out because there was absolutely no way of correcting the figures. The Committee just had to sit and enact the statutory instrument as it was, even though it was clearly laughable, giving far too much cover for payments and not acting as a proper control. That is a minor example, but it shows that there are occasions when Ministers make mistakes and when it would be quite helpful if there were some kind of correcting procedure.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

My right hon. Friend is making an important point because he is exposing the very fact that, despite the fine occupant of the Front Bench today, one cannot be 100% certain of the quality of the procedure that is being carried out from the ministerial office. This House is fundamentally the custodian of the public purse and the taxpayers’ money, and we must be absolutely certain that no cheques are blank and signed and left on Government desks.

[John Redwood]

I am glad we agree about that. I am trying to make a helpful suggestion for the future on this issue and a wider issue to which we need to return at some point. We need a system that establishes parliamentary control—as I have explained, all the methods we are discussing today are parliamentary control of one form or another—but we may need to think about how we improve processes for the future when that control is a statutory instrument.

[Mr Grieve]

My right hon. Friend is making some important points. If I may say, I have signed up to the amendments tabled by the Procedure Committee because they are a reasonable compromise, but they are most deficient in the absence of a revision mechanism to ask a Minister to reconsider. My right hon. Friend may agree that, even at this stage, those on the Treasury Bench could go away, reconsider the issue and bring a further amendment forward on Report to deal with it.

[John Redwood]

That may be hanging a bit too much on this piece of legislation. I think this is a wider issue, which Parliament may need to consider, so I was not going that far in my recommendation. However, Ministers would be well advised, if by any chance they did make a mistake in a draft instrument, not to do what the previous Government did and just drive it through, but to accept that they needed to withdraw it and to come back with a corrected version, which would make for better order.

The Bill as drafted, with the amendments to provide a process to make the task of parliamentary scrutiny manageable, is a perfectly sensible package, and I look forward to hearing sensible promises from Ministers on the Front Bench, who I am sure will want to exercise these powers diligently and democratically.

[Tommy Sheppard (Edinburgh East) (SNP)]

I rise to speak to amendments 264, 222, 73, 234, 239, 240, 266, 269 and 272, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and amendment 233, in the name of my hon. Friend the Member for Airdrie and Shotts (Neil Gray). I will also speak in general terms to amendments 206, 268, 271, 274, 216, 265, 207, 208, 205, 267, 270 and 273, in the names of my hon. Friends, which are grouped for debate today, but which will be voted on tomorrow. May I also say that I hope the hon. Member for Cardiff South and Penarth (Stephen Doughty) will push his amendment 158? It was debated earlier in Committee, but it is very germane to this debate. [Interruption.] I read that list out because I could not possibly memorise it.

As I said on Second Reading, we are in a dilemma of our own making. We are discussing the possibility that all these powers should be given to Ministers simply because we have not adequately prepared for the process of leaving the European Union. It is three months now since Second Reading, and we do not appear to have gone one step forward in terms of knowing what the effects of that process will be on the body of legislation that already exists in the United Kingdom.

[Anna Soubry]

It is really quite important to understand that this is the process of leaving the European Union, and it has nothing to do with being unprepared in any way. It was always known—well, in as much as we ever knew anything about Brexit—that this was the sort of thing we would have to do to convey this huge body of EU law into domestic British law, and, on that, we are all agreed.

[Tommy Sheppard]

The right hon. Lady has much greater faith in the Government’s intentions than I perhaps do. What I am trying to suggest—I thought she might possibly agree with me—is that, by this stage in the process, we ought to have some definition of which Acts of Parliament will require amendment, because there are anomalies in them with regard to the body of EU retained law, and we ought to have narrowed down the number of areas in which we have to give Ministers the power to use their discretion and to bring forward changes through delegated legislation to our existing legislation. The fact that we have not narrowed that down and that we are still talking about giving Ministers quite sweeping and general powers is quite alarming, and I only hope that, as we go to the next stage of this process, we will get more clarity. Ministers’ defence is basically to say, “Trust us to rectify these anomalies and to get things right,” but Opposition Members are saying, “Well, we would be better able to trust you if we were able to get a reassurance that you are not going to use these powers in certain areas.” Yet, Ministers are resisting every attempt to qualify and limit the exercise of these powers.

[Tom Brake]

I would like the hon. Gentleman to cast his mind back to before 23 June last year. Can he recall prominent leave campaigners suggesting at any stage during that campaign that there would, in fact, be this very large power grab and that taking back control meant the Executive taking power away from Members of Parliament?

[Tommy Sheppard]

No, the implication was clearly given that control would be taken back by the people. In fact, it seems that control is being taken back by the Executive. In as much as power is going anywhere, it is not coming into this Chamber, certainly at the moment.

[Joanna Cherry (Edinburgh South West) (SNP)]

I was struck by the rather sweeping statement by the right hon. Member for West Dorset (Sir Oliver Letwin), in reference to clause 7, that we apparently all know what “appropriate” means and that the courts will know what “appropriate” means. Does my hon. Friend, like me, look forward to hearing from the Minister what “appropriate” means, and does he, like me, agree with such distinguished lawyers as those at the Law Society of Scotland and JUSTICE that “appropriate” gives far too wide a discretion to the Government?

[Tommy Sheppard]

I do indeed, and I will come on to that in just one moment.

[Helen Goodman]

I just want to back up the hon. Gentleman’s request for more information from the Government. In our report, the Procedure Committee called on the Government to publish

“as soon as possible…an outline schedule for the laying of instruments before the House.”

The hon. Gentleman is absolutely right: we still do not know what the Government have in mind.

[Tommy Sheppard]

If we had some more of that detail, we would be a little more reassured, and we would not be able to attribute anything other than good intentions to the Government in this process. However, that is not the situation we are in at the moment.

Words are extremely important in this process, because words and meaning have to be shared for us to move forward. If we look at what happened last Friday, we can see a clear example of how one set of words can mean two entirely different things to two different people. It looked as if the Prime Minister—I am sure she genuinely believed this—was signing an agreement on behalf of this country with the 27 other member states of the European Union. She described it as a series of commitments that were being made by this country at this interim stage in the process. Within 24 hours, however, we had the spectacle of one of her closest advisers turning round and taking to the public airwaves to say that these were not commitments at all, but merely a statement of intent. He was sternly reprimanded and corrected the following day, but that does show that, unless we are very careful and precise about the words we use, there is scope for ambiguity and, therefore, misunderstanding.

The first word we should be very careful about is “deficiency”, which appears throughout the Bill, and which is the subject of several of the amendments I am talking to. The word “deficiency”, as it appears in the Bill, need not necessarily mean the absence of something; the EU retained law being brought over could also be deficient if it contains something that prevents the Government of the day from doing what they want to do. I do not want to engage in hyperbole or to give dramatic, unreasonable examples, and I am sure that, for the vast bulk of things, we would all expect to have primary legislation to make policy change, but this issue does open up the scope for making significant policy changes without reference to this Parliament or to primary legislation.

We have already had mention of the working time directive—the 48-hour limit on weekly work. I am not suggesting that the Government would necessarily want to use these powers to overturn completely that and to substitute 48 with 72. However, a Minister in the future—in the period of transition—might well find that the 48 hours is overly prescriptive in a mandatory sense, and might choose to make it more of an advisory notion, rather than something that is absolute and that can be challenged. With the stroke of a pen—overnight—the rights at work of millions of people in this country could simply be eroded. If the Minister is saying that that is not the intention and that it will never happen, he should support amendment 75 in the Lobby tonight, which will make sure that will not happen, because it will exempt workers’ rights from the scope of the legislation.

[Tim Farron (Waterford and Lonsdale) (LD)]

The hon. Gentleman is making some excellent points, and I would like to back him up on them. Would it be worth reflecting on the fact that, rightly or wrongly, being in the European Union means that we make some colossal policy assumptions? On environmental matters, one of those assumptions is that it is right that we invest public money in farming to make sure that we protect our countryside. However, we also, without ever having a debate in the House about it, assume that it is right to, effectively, subsidise food in this country. We may now be in a position where we are about to accept that assumption or to move away from it, with colossal consequences for the whole of our society.

[Tommy Sheppard]

The hon. Gentleman makes a very good point that is a further illustration of the dilemma that is now facing us.

14:59

I want to give another example that is minor but of some significance. At the moment, European regulations provide for people to get compensation if their flights are delayed. That includes short delays, whereas in most parts of the world insurance is provided only if a flight is delayed for more than 24 hours. Let us suppose that after exit day the Government were lobbied by airlines, airports or whoever to say that they wanted to restrict the scope of that legislation because it was not compatible with policy in this country. It would then be very simple for the Government to make a qualification of 24 hours’ delay before compensation could be paid through any scheme that they brought in. That is a simple thing that does not sound dramatic, but it will affect thousands of people every year out of the many millions who make these journeys.

[Mr Baker]

rose—

[Tommy Sheppard]

I will give way in a moment, but I want to give a third example, which the Minister may also wish to talk about, regarding the common agricultural policy. At the moment, Scottish farmers are waiting on £160 million of refund payments under the CAP because of the way that it was changed in recent years. The way in which those payments are to be distributed is currently the subject of EU regulations, but what if the Government felt that that was somehow unfair and they wanted to change it? Then, without reference to primary legislation and or to Parliament, they could do so, and the material amount of money that farmers would get would be different from what they expect now. That is just a simple illustration of how these policies could change. I now happily give way to the Minister if he still wants to intervene.

[Mr Baker]

Could the hon. Gentleman revisit each of the examples he has given and explain why he thinks that they would be deficiencies arising from our withdrawal from the EU, because having listened carefully to him, I do not think that, as my hon. and learned Friend the Solicitor General is saying, any of them could be classed as deficiencies arising from our withdrawal?

[Tommy Sheppard]

I do not think that they are deficiencies—that is not my point. My point is that a Minister or a future Minister might regard them as deficiencies, and therefore might change the law in this way.

[Dan Carden (Liverpool, Walton) (Lab)]

The hon. Gentleman has talked about the importance of language in this debate. Should we not all be worried by the actions of this Government over the latest rise in tuition fees, where they refused a vote in this House and ignored an Opposition day debate? The actions of this Government should worry us all when we look ahead to these future arrangements.

[Tommy Sheppard]

Indeed so. There is always the danger that some of the policies that Government may wish to get through, and would run aground were they to try to introduce them through primary legislation, may be sneaked through the back door in a salami-style way. We do not know. The point is that we are being invited to give Ministers the power whereby these things could happen.

[Mary Creagh]

I understand and sympathise with the hon. Gentleman’s point on deficiencies. Does he agree that over the weekend we have seen varying interpretations of the meaning of full regulatory alignment, which seems to mean all sorts of different things to different people as the Cabinet tries to have its fudge and eat it?

[Tommy Sheppard]

Indeed. While I am tempted to digress into a debate on what happened with the phase 1 agreement and regulatory alignment, I think I had better stick to the subject in hand.

With regard to defining “deficiencies” properly, amendment 264 calls on the Government to provide reassurance by bringing forward clear definitions of what they might mean by “deficiencies”. If we had that, we might be better able to consider whether to give them these powers.

[Sir Oliver Letwin]

I do not know whether it would be possible to find definitions that would help. However, the hon. Gentleman seems unwilling to accept, or certainly has not alluded to, the fact that secondary instruments, as opposed to primary legislation, are justiciable. Our courts are quite used to concepts like deficiency and appropriateness. Is that not what we are relying on—the action of the courts?

[Tommy Sheppard]

I accept that these things may be challenged, but I am trying to argue for a democratic process whereby it is the elected representatives of the people who debate and choose the policy direction in various areas.

[Joanna Cherry]

Is the point not really that, as has been pointed out by JUSTICE and the Law Society of Scotland, the term “appropriate” is so wide that it gives the courts a breadth of discretion that they themselves have told us that they do not want?

[Tommy Sheppard]

Indeed. That takes me nicely to my next point, which concerns the word “appropriate”.

[Sir Oliver Letwin]

rose—

[Tommy Sheppard]

Can I make a little progress? I do not usually say that, but I am barely halfway through at the moment.

The word “appropriate” is one of those words that is so open-ended and ambiguous that it could literally mean all things to all people. That is why I am a big fan of amendment 2, in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve), which attempts to give some definition to what we mean by “appropriate”. I was not quite sure what he was implying about pressing it to a vote, but I hope that he is going to—I would be very happy to support it.

Amendments 205, 206, 216, 17 and 265 also attempt to define the word “appropriate”, with the effect of substituting the word “necessary”. That is a much more agreeable term, because “appropriate” is subjective: what is appropriate for one person may not be appropriate for the other, but what is necessary has to be evidenced by reasons. If something were to be appealed and come to court, it would be much easier to question necessity than appropriateness. These amendments would also be useful.

Let me now talk about the aspects relating to devolution—again, without getting into the phase 1 agreement. Clearly, the whole matter of how powers are exercised by Ministers, whether those powers are residual or broad-brush, has a critical impact on the devolved Administrations. I hope that the Committee will support amendment 161, which requires Ministers to get the consent of devolved Administrations when they are making secondary legislation on matters that affect them. I hope that that sort of qualification will be uncontroversial, but I dare say that it will not be.

Perhaps the most important amendment is 158 in the name of the hon. Member for Cardiff South and Penarth. It simply says that the Scotland Act 1998 and the Government of Wales Act 2006 should be exempt from the set of powers that we are giving to UK Ministers to bring forward secondary legislation. The Government already accept that the Northern Ireland Act 1998 has been exempted, so Ministers need to explain why they would exempt one devolved legislature and not the others. How can it be justified in one place and not in the others? Surely it is a simple matter of common sense to say that this provision should confer on UK Ministers an exercise of power in relation to the matters that this Parliament is responsible for, not in relation to those that other Parliaments are responsible for.

I want briefly to mention human rights. I appreciate that the Secretary of State has tabled an amendment, now to be part of what we are discussing, in which he refers to examining the equalities implications for any particular piece of legislation. However, we can do more than that. I want to know why the amendment says that we should exempt the Equality Act 2010 and the Equality Act 2006 from the powers being given to Ministers. If the Government do not accept that, there is always the danger of people implying from their actions that they may wish to do something that would constrain or overturn some of the safeties and securities in those Acts.

Let me talk about the experience that this place has in making secondary legislation. This will not be so important, I suppose, if we end up with a tiny number of residual matters that need to be considered in this way, but if that is not the case—if, because of a lack of legislative time, the Government try to put an awful lot of matters through secondary legislation—then we will be very ill-equipped to deal with that.

Like many Members, I have sat on Delegated Legislation Committees. They are effectively a rubber stamp; we hope that the officials and civil servants who draw up the regulations have worked them out, double-checked them and made sure of them, because we rarely get the opportunity to get into a debate. I well remember a recent Delegated Legislation Committee to which I turned up determined to get involved in a discussion of what the regulations were about, to the dismay of other Members. They were dismayed not by the content of what I said, but by the fact that I said it and made the meeting last 30 mins rather than three, so they missed their subsequent appointments.

That is how Delegated Legislation Committees work at the minute. People regard them as a rubber stamp and something of a joke. If we did not have faith in our civil service and those who prepare the regulations, we would be in a bad way indeed, and that cannot continue. I accept that the amendments tabled by the Procedure Committee are an attempt to overcome many of those deficiencies, but I think that they are baby steps. Of course they are worth taking, but they are minor changes to our procedures. If we try to load on to the existing procedures a vast array of secondary legislation, those procedures will not be fit for purpose and we will end up making bad and ridiculous legislation.

The debate has been about Henry VIII powers. I hope that those who argue for such powers do not go the way of the architect of the previous Henry VIII powers, Thomas Cromwell, and end up in the Tower or dead. I am sure that they will not, but I caution them, when they are considering how much power to give to Ministers—how much power to transfer from the legislature to the Executive—to take a minimalist rather than a maximalist perspective. If they do not, those of us who argue that this is a major power grab by the Executive from the legislature will be entirely justified in doing so.

I urge Ministers to tell us this in their summing up: if they reject every single amendment that is designed to constrain their area of operation—to define the manner in which they might exercise judgment on such matters—what on earth are they going to do instead to reassure this House? We need to know that we are not giving them carte blanche to go forward and do what they want without reference to the democratically elected representatives of the people in this country, for whom control was meant to have been taken back.

[Tim Loughton (East Worthing and Shoreham) (Con)]

I am grateful for the opportunity to speak. I will do so perhaps rather more briefly and concisely than many others have done, because I know that lots of people want to contribute to this debate.

Up to now, I have sought not to encumber the House and the Government with lots of amendments to an already extensive and comprehensive Bill. I have certainly sought not to bind the Government’s hands in the very difficult process of exiting the EU in the months and years to come—particularly in the complex and important negotiations, which received a substantial boost last Friday. No hon. Member should be in any doubt that there is a serious and growing prospect of our agreeing to a mutually beneficial conclusion to the Brexit negotiations. Why would anybody in this House not want that to happen?

There is, however, an aspect of the Bill that merits a new clause. I am speaking primarily to new clause 53, which is in my name and that of other right hon. and hon. Members from all parts of the House. The new clause is designed simply to perpetuate an existing arrangement in family reunion rules. We should take great pride in our involvement in that arrangement. Many of us are concerned that if it does not continue, vulnerable children who are fleeing conflict in the middle east, in particular—this House has heard much about them in the last few years, and is familiar with the situation—could be detained in places of danger. We are doing much to help such children, and we need to do more.

I have seen at first hand the benefits of the Dublin arrangements. My right hon. Friend the Member for Loughborough (Nicky Morgan) and I went to Athens as the guests of UNICEF earlier in the year to visit the refugee projects. I am aware that many other hon. Members have been to Greece, Italy and Calais to see the results of getting it wrong further up the line. The situation in Italy, in particular, is rather more extreme than that in Greece. In Greece, we saw UNICEF and other aid agencies working with a Government under great pressure, and doing a pretty impressive job. Some 30,000 refugees arrived in Greece in 2016, but the number of arrivals has since fallen to a more manageable level. That—not least the almost 3,000 unaccompanied children among those 30,000 refugees—still represents a serious challenge, however.

15:15

I pay tribute to the aid agencies for working within the existing rules in very difficult circumstances and doing their very best. They have been helped, quite rightly, by a lot of aid money from this country, and any doubters of the benefit of our aid budget should go and see at first hand what we are achieving. We were particularly impressed by the work of the British Council, which brings together unaccompanied child refugees from a number of different backgrounds, languages, cultures and countries and gives them a meaningful education. That gives them the hope and aspiration that they will be able to carry on a normal life at some stage.

With winter upon us, the situation in Greece is far from satisfactory. There are almost 2,000 unaccompanied children on waiting lists just for accommodation shelters in Greece. The conditions on the islands, where many who have come across the Aegean end up, are far from satisfactory, and it still takes far too long to get those children to places of safety, permanence and some degree of stability. That is why my right hon. Friend and I have tabled this new clause, which I am glad to see has been supported by many other hon. Members.

My right hon. Friend and I disagree on much about the process of Brexit, although I hope that the number of things on which we disagree is reducing as she sees the inevitability of what will happen. On the subject of family reunion rules, however, we are absolutely at one. We saw at first hand orphaned children and unaccompanied children trying to reach relatives in countries across the EU. Some children had been sent there from Syria to escape the bombs raining down on places such as Aleppo. Some had been sent there to escape conscription into the Syrian army and an ensuing murky existence.

Under current EU law, an unaccompanied child can apply to be reunited with his or her close family in any other state that is a signatory to the Dublin convention—currently the Dublin III regulations; it will transform into Dublin IV at some stage in the future—but there is a disparity between the UK’s refugee family reunion rules and the Dublin III regulations. The UK’s own rules enable refugee children to be reunited only with their parents, whereas Dublin III allows unaccompanied asylum-seeking children to be reunited with their adult siblings, grandparents, aunts and uncles, as well as their parents. That discrepancy has left many children with little choice but to make the dangerous journey to Europe to reach safety with family in the UK.

We met many articulate, well-educated teenagers, some of whom had lost their parents and were looking to go to other countries in Europe—primarily Sweden and Germany—where they had the last vestiges of family connection. Quite often, those connections were with siblings, or uncles and aunts. For those young people, it was the only available bit of stability and continuity with their previous existence in places such as Syria.

[Tim Farron]

I commend the hon. Gentleman for all the remarks that he has just made. I, too, have visited many camps and spoken to unaccompanied child refugees. Does he agree that the case he is making serves as a reminder that our acting honourably and decently, as a country and a continent, does not constitute a pull factor—we are simply responding to the push factor of the appalling circumstances from which those people are fleeing?

[Tim Loughton]

The hon. Gentleman’s interest in this subject, like that of most others in the House, is exceedingly well founded, but I do not want to confuse the Dublin scheme with other schemes, about which we have had debates in this country.

This approach is aimed at—Government policy is also, quite rightly, aimed at—trying to keep children who have lost their parents or become separated from them in places of safety. Where possible, such places should be close to their places of origin, from where they may, if possible, be repatriated to countries such as Syria. They can be housed in communities who speak the same language and have similar cultures, which will provide some degree of continuity in their otherwise traumatic, ruptured existence. When that is not possible and there are family members in other European countries, the children can be given stability with them.

I do not want to get into the schemes, such as those set up in the past by other countries, that I am afraid have acted as a magnet for children who, at the hands of people traffickers and others, have taken to boats in very dangerous circumstances. The policy of this Government has been the absolutely right one of trying to keep such children out of the hands of those who want to profit from human misery and take advantage of their desperate circumstances.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

It may disturb the hon. Gentleman to know that I have signed his new clause, and I agree very much with him and the right hon. Member for Loughborough (Nicky Morgan) on this issue. This weekend, I was in Calais, where a 10-year-old is sleeping rough because we do not have the systems in place under the legislation to be able to assess his right to be in the UK. Does the hon. Gentleman agree that what is so important about the amendments to protect the Dublin process is not just its principles, but its practice and what happens if and when we leave the European Union?

[Tim Loughton]

I am not alarmed by the fact that the hon. Lady has signed my new clause 53; I am flattered and encouraged. I would expect nothing else from the hon. Lady, who has taken an interest in this area. However, Calais is a sign of failure: it should not be happening. We should be dealing with those children closer to home, or leapfrogging Calais altogether and placing them in places of safety in the United Kingdom, Sweden or France itself. The issue is baffling to me—I have spoken about it many times. If what is happening in Calais was happening in the United Kingdom, our children’s services would be placing those children in a place of safety, not allowing them to remain at liberty and be exposed to people traffickers, sex traffickers and all sorts of other criminals who would harm them.

I want to get back to what my new clause attempts to do. As we leave the European Union and therefore Dublin III, the UK’s different—in this case, slightly more restrictive—immigration rules will provide the only means by which refugee children can be legally reunited with their families. As the UK looks to improve our own laws through the European Union (Withdrawal) Bill and to replicate the provisions ensuring that children stranded in Europe can be brought to join asylum-seeking family members in the UK, it is imperative that it should broaden the scope of the definition of “family” in our own British immigration rules so that these are in line with the current European ones. That will allow children to be reunited with close family members, wherever they are. Hence the importance of continuity and of perpetuating the existing situation, which works well; it could work better, but the principle is certainly absolutely right.

The UK’s immigration rules can apply to children anywhere in the world, and they therefore provide a safe and legal route for children, avoiding the need for them to embark on perilous journeys to Europe, which have been discussed. We need to build on this very positive aspect of the rules. The UK should amend its immigration rules on refugee family reunion to allow extended family members who have refugee or humanitarian status—adult siblings, grandparents, aunts and uncles, as I have mentioned—to sponsor children in their family to join them in the UK when it is in the child’s best interests to do so. That point about the child’s best interests must be absolutely paramount, as it is the basis of all our child welfare legislation in this country. After years of conflict, many of these children have been orphaned or do not know where their parents are, but they may have grandparents, aunts and uncles, or adult brothers and sisters in the UK, who can care for them.

If these changes were made to the UK immigration rules, that would enable children to be transferred from their region of origin and reunited in a regular, managed and safe way. Refugee family reunion transfers would all be processed by UK embassies or consulates, meaning that we could take back control of this process and ensure it works at a speed—it needs to be quicker than it is now—that is in the best interests of the children.

Without the changes, children will continue to be vulnerable in being forced to take dangerous journeys and put themselves at risk. The whole thrust of our asylum policy on looking after these vulnerable children has been to keep them away from such harm. Last year, some 700 unaccompanied refugee children were united with their families using the European system, which is on top of all the other schemes to which the UK currently subscribes.

I hope that my new clause is a helpful probing amendment. I am grateful to the Minister for Immigration, who has met my right hon. Friend the Member for Loughborough and me to discuss this issue. He is sympathetic to what we are trying to achieve. I acknowledge that the timing of the new clause might be better in a forthcoming immigration Bill, but it is useful to put it on the record now to get a comment from Ministers about the Government’s intentions at the appropriate time and perhaps with more appropriate wording; the word “appropriate” continues to appear.

My new clause is intended to build on the good work that the UK Government have done for so many thousands of child refugees so far. That good work has resulted from the huge investment—now of over £2.3 billion on Syrian refugees alone—aimed at frustrating the people traffickers and others who would harm these very vulnerable children. Such a change would show that the United Kingdom intends to continue, after Brexit, to be a leading force for humanitarian good outside the EU on the basis of British principles, British attitudes to the welfare of the child and British generosity in looking after, as we have done for so many years, those most in need. This system works, and we must make sure that it continues to work after Brexit.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I rise to speak briefly to amendments 48, 49 and 52 in my name. They have cross-party support, including from other Select Committee Chairs, because they are about safeguarding the role of Parliament and preventing the concentration of power in the hands of the Executive.

Before I talk in detail about those amendments, I want to support new clause 53 and the words of my Home Affairs Committee colleague, the hon. Member for East Worthing and Shoreham (Tim Loughton). He is right that we need to continue with our historical obligations towards refugees and with the principle of family reunion, ensuring that child refugees are not separated from their family and do not lose their rights to be reunited with family members who can care for them, especially when families have been separated by persecution and conflict. He is also right that this is about preventing the people traffickers, the exploitation and the modern slavery that can cause such harm and blight so many lives.

Our Committee has often found evidence that leads us to want the Dublin III process to work faster and more effectively, not for the principles behind it to be ripped up and thrown away. I therefore welcome the fact that, as the hon. Gentleman has said, Ministers have shown an interest in supporting the continuation of these historical obligations. I hope that that will be addressed if not in this Bill, then in either an immigration Bill or in the withdrawal agreement Bill in due course.

The amendments I have tabled to clause 7 address the concern, raised by so many of us, that Parliament is being asked to hand over considerable powers to the Executive without sufficient safeguards. That concentration of powers in the hands of the Executive—a concentration not seen since the days of the infamous Tudor monarch—goes against the very reason why all of us were elected to this place: the legislature has an historic obligation to place checks on the power of the Executive, in order to prevent concentrations and abuses of power, in relation to Brexit or to anything else. It is an obligation that each of us takes on when we swear the oath at the Dispatch Box.

15:30

I welcome the restrictions and new processes that the Procedure Committee has proposed, but I do not think that they go far enough to address the potential concentrations of power in clause 7. It would still be up to Ministers to decide whether to accept the Committee’s advice on whether to use the affirmative or negative procedure. Either way, the clause, as drafted, still allows Ministers to use secondary legislation for an immensely wide range of amendments to primary legislation, and in a way that is not restricted to what is needed for the Brexit process. The clause allows Ministers to use delegated legislation wherever they believe that to be appropriate, giving them huge powers of discretion to decide what they think any failure of retained EU law to operate effectively means, or to decide what constitutes a deficiency in retained EU law.

Instead, amendment 49 would introduce a necessity test. It states that powers should be used only when they are needed

“to adapt the body of EU law to fit the UK’s domestic legal framework.”

Such a “necessity clause” was recommended by the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee. I cannot see what the objection would be to including such a clause in the Bill. Ministers have said that the purpose of the clause 7 powers is to do what is needed, so why not make that clear in the Bill? “Necessary” is a much higher legal threshold. As the Bill is currently worded, Ministers will simply have to demonstrate, if faced with a legal challenge to their use of these powers, that they took a reasonable view that something was appropriate. With a necessity clause in place, they would have to satisfy the courts that the regulation was in fact required to address the deficiency in question.

When we are talking about giving away Parliament’s powers to the Executive, and such far-reaching powers, surely there should be a higher test of the circumstances in which they can be used, rather than just when Ministers think it is appropriate. Surely we should do that only when it is really needed. We always hand over power to the Executive when we give powers to make secondary legislation, but in clause 7 we are also giving Ministers huge scope to decide how and when those powers should be used.

Amendment 48 sets out another way to tighten the scope of delegated powers. It would put in place the same safeguards currently set out in the Legislative and Regulatory Reform Act 2006. It would require any changes to be proportionate and it would require Ministers not to remove any necessary protections or rights and freedoms. It is similar to amendment 2, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve). It reflects the fact that Parliament has previously given the Executive powers to make secondary legislation, but in the 2006 Act we also put in place a whole series of safeguards. Not even to put those safeguards in the Bill seems extraordinary. Those are the safeguards that Parliament has previously agreed in order to prevent abuse, and I think that they, as a minimum, should be used for this Bill.

Amendment 52 would provide further protection for equalities legislation. There is no justification for reducing the level of legal protection against discrimination afforded by the Equality Act 2010, and the amendment would simply make that clear in law. The Equality Act is the culmination of decades of domestic protection for equalities, and I see no reason to amend, repeal or revoke any bit of it as a consequence of Brexit. The Government have instead put forward amendment 391, but it is insufficient, frankly, because all it would do is require Ministers to make statements that they have had regard to equalities legislation, and if they do not make a statement then another Minister has to make a statement as to why. Why not simply prevent the Government from using clause 7 to repeal, change or reduce the provisions in the Equality Act?

Amendment 52 would have the same effect as amendment 25, tabled by those on the Opposition Front Bench. If they press their amendment to a vote, I will not press mine, but I believe that there should be a vote this evening on the issues of necessity and restricting the powers in clause 7. If other Members, such as the right hon. and learned Member for Beaconsfield, do not intend to press any of their amendments on a necessity clause to a vote, then I would like to press my amendment 49.

In conclusion, this is simply about Parliament standing up for itself and ensuring that it does its job: scrutinising the Executive and ensuring that when we give them powers—of course, we do need to do so in the proper circumstances—we ensure that we put the right safeguards in place, the right checks and balances, as we have an historic obligation to do. It simply means that we do not believe that this should be done through a concentration of powers, and we think that these powers should be used only when they are needed.

[Mr Grieve]

It is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper). I draw the Committee’s attention to my new clause 82 and amendments 15, 1, 388, 5, 2, 389, 16, 13, 3, 4 and 12. I apologise to the Committee for so burdening the amendment paper this afternoon, but that simply reflects the importance of clause 7 and the fact that, while there are many important aspects to the Bill, clause 7 and the powers that the Government intend to take in order to deal with deficiencies arising from the UK’s withdrawal are so controversial.

I remember a long time ago, when I was newly elected to this place, listening to a debate in which an Opposition Back Bencher, also newly elected, asked why we have Second Reading debates at all, because, in view of the size of the Government majority, they were bound to be a foregone conclusion. She suggested, as I recollect, that in the circumstances Second Reading should be merely formal and that we should move straight on to the Committee stage. The issue before us today touches directly on what was said then, because it is not only a question of parliamentary sovereignty that is at stake, and the extent to which we want to hand over power to the Executive; it is also a question of whether we want to maintain the rule of law by good governance. This House, not without good reason, has over time evolved processes and procedures that present the Government with hurdles when it comes to the enactment of primary legislation. We take Bills through Second Reading, Committee, Report and Third Reading precisely because we, and our forebears in this place, have come to understand that that is the way, by a process of debate through which we moderate each other’s ideas, we are likely to achieve the most sensible outcome. Indeed, we have been doing that consistently. I praise the Government for the time they have given us to do precisely that on the Bill.

However, that is the very reason why we should be so cautious when the Government ask us to change the rulebook, for what are undoubtedly primary legislative changes, to give them the power to bring about all those changes by statutory instrument. It may be that statutory instruments can be debated—although in many cases, as we know, they are not—but the fact remains that the process of debate, particularly if it touches on matters of importance, is likely to be incomplete and unsatisfactory. My right hon. Friend the Member for Wokingham (John Redwood) so tellingly made the point about the deficiencies of our statutory instrument system in relation to not being able to ask Ministers to go away to consider the deficiencies—if I may hijack that word—in their own proposals.

That is why I have found clause 7 particularly difficult in the context of being able to support the Government. There are two ways in which the challenges of clause 7 can be met. The first is to improve the scrutiny process by which the House goes about its business. The second, as has been suggested by the numerous amendments I shall come back to in a moment, is to try to restrict the scope of the powers the Government have taken, or at the very least to get the Government during the course of the passage of the Bill to justify each and every one of them.

On the scrutiny process, the Government have moved. I tabled amendment 3, which appears on the selection list for debate this afternoon, because I went to the Hansard Society, as I am sure other hon. Members did, and got its assistance in looking at ways in which our scrutiny processes might be improved. Amendment 3 and the consequential amendments derived from it came from that exercise. I have to say to the Minister—I again endorse my right hon. Friend the Member for Wokingham; I am sorry he is not in his place to hear my eulogy of him—that we very badly need a total reform of our statutory instrument system. It is deficient in a whole range of matters. The Bill provides a possible opportunity on how we might make a significant change: providing a proper triage mechanism, giving the House a degree of control over the process, allowing for a dialogue between the House and the Minister, and still enabling statutory instruments to be enacted.

The Government, who I appreciate are under a lot of pressure over a whole range of matters, in particular the word “time”—which I think Monsieur Barnier keeps on repeating, but it is a matter with which we all in this House have to concern ourselves—have been reluctant to do that. In has stepped my hon. Friend the Member for Broxbourne (Mr Walker) to tell us that he has a different way of approaching this. Looking at the Procedure Committee’s proposals, I am impressed by what his Committee has achieved. I continue to have some reservations about some aspects, in particular the point highlighted by my right hon. Friend the Member for Wokingham on the inability to engage in preliminary dialogue and to ask for revision, but for the purpose of dealing with the avalanche of statutory instruments about to come in our direction the amendment that has been tabled will enable the House to do its job properly.

Much is going to depend—I hesitate to say this, because in this House we are all equal—on the Government’s common sense on how those who are to be appointed to the Committee are chosen. There are plenty of Members on all sides who have a keen understanding of what a statutory instrument is, a keen understanding of how it should work and an ability to sniff out when it is being misused. It is those individuals, if I may say so to my hon. Friends and to the Whips on the Government Front Bench, who ought to be appointed. Without that, a committee will have no credibility at all. I appreciate that we will have to move on to consider Standing Orders. If we do this properly and with good will on all sides, my assessment is that the Government will be helped.

15:45

It may well turn out that some of the many technical amendments that are going to clutter us up can be disposed of more effectively and with greater confidence from this House that the job is being properly scrutinised. On that confidence will depend whether Ministers are summoned to this House to answer urgent questions. Just imagine what would happen were a Minister to refuse to follow the advice of the committee. I simply make this point gently to my hon. Friend the Member for Wycombe (Mr Baker)—he is the Member for Chepping Wycombe as well as High Wycombe, as we both know, so the hon. Member for Rhondda (Chris Bryant) was not quite so wrong earlier to refer to him in that way. [Hon. Members: “Chipping?”] Chepping Wycombe.

I do not wish to see my hon. Friend the Minister dragged to the Dispatch Box to answer in such a situation and, ultimately, I think that as the statutory instruments go through we will see growing confidence in the process. That will help the Government; it will help the House; and it will help the country to get through this enormous, colossal mountain of SIs.

[Mr Jenkin]

May I take it therefore that my right hon. and learned Friend is offering his services on this committee?

[Mr Grieve]

I am already the Chairman of another Committee of Parliament, and I think it might be undesirable to burden me with extra work. Indeed, there are plenty of other people in this House who are capable of doing this work. Obviously, if somebody wanted to ask me, I would give it consideration, but I am always conscious of being rather too thinly spread as it is, so I do not put myself forward.

[Tom Brake]

Can the right hon. and learned Gentleman set out how he thinks the process of scrutiny will be improved for outside organisations? Many of them feel that they are excluded from this process.

[Mr Grieve]

Such organisations can be summoned before the new Select Committee. They can come along and provide input to the committee on anything that has been tabled; that has been my understanding of how it would work and, indeed, my hon. Friend the Member for Broxbourne, sitting to my right, has just confirmed that. There is a mechanism here. Obviously, to come back to the point I made earlier, this depends on the quality of the committee and shows why it will be so important. It also comes back to the Procedure Committee and how it works. For all those reasons, I think that this is a workable arrangement.

[Vicky Ford (Chelmsford) (Con)]

On the quality of the committee and the scrutiny process, the committee will be scrutinising changes to detailed pieces of European legislation. In my experience, in other countries’ Parliaments, an expert committee often does the scrutiny. So financial experts would consider a piece of finance legislation; environmental legislation would be considered by environment experts; and a judicial piece of legislation might be considered by those involved with their justice committee. Does he agree that it would be sensible to include Members with expertise in the underlying legislation, as well as in British legal practice, on the committee?

[Mr Grieve]

That would be a very sensible course of action. As I say, the burden is on the Government to show some common sense and inventiveness in how they approach this. My understanding is also that, as was mentioned earlier, the committee will not have a Government majority—

[Mary Creagh]

Eight and eight.

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

[Mr Grieve]

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

[Mr Cox]

More often.

[Mr Grieve]

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.

16:00

[Mary Creagh]

It is a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve). If he is concerned about tertiary legislation, I invite him to co-sign my amendment 291, which will be taken on day 8 of our consideration of this Bill, and which would require all tertiary legislation made under powers under these regulations to be subject to parliamentary control. That would go some way towards addressing some of the concerns he and I have about tertiary legislation.

I rise to speak to new clause 62 and amendment 138, tabled in my name. This Bill poses a severe risk that environmental legislation on exit day becomes zombie legislation, no longer updated or enforced, and vulnerable to being watered down or dropped entirely. Amendment 138 seeks to prevent environmental protections from being watered down, and new clause 62 would require the Government to come up with a solution to the governance gap.

That is important because 80% of the UK’s environmental protections come from EU law. This Bill will have to deal with swathes of environmental law, and we do not want it tampered or fiddled about with in any way if we leave. Those laws have brought us a very long way since the 1970s when we were seen as the dirty man of Europe, but they are neither self-executing nor self-policing. They set air quality targets, climate change targets and water quality standards, and the rules and regulations affect almost every aspect of our waste management industry. It was interesting that the Prime Minister said yesterday that waste, water, food and agriculture would all be subject to continued regulatory alignment; we wait to see what that means in practice. Those laws mean we bathe on cleaner beaches, drive more fuel-efficient cars and can hold the Government to account on air pollution.

We are part of a global gold standard in chemicals regulation, and the chemicals and pharmaceuticals industry yesterday wrote to the Environment Secretary stating in terms that it wishes to stay in the registration, evaluation and authorisation of chemicals regulation. On a previous day’s consideration of this Bill, the Minister of State, Ministry of Justice, told me in response to my concerns on REACH that it is directly applicable in UK law, but he fundamentally misunderstands what REACH does. It creates a body—the European Chemicals Agency—which regulates, evaluates, authorises and enforces that law. We do not have such a body in UK law, so although that directive may be directly applicable and be valid in UK law, there is no body to carry out its functions. As we go through this Bill we are going to find that that is the case. There may be a body that the Minister thinks he can dump those functions on through a duplication of legislation, but that is not a perfect or elegant solution. Today, we are a world leader in environmental standards, and, crucially, we are able to hold this Government to account. That certainly focuses Ministers’ minds when there is the threat of infringement or infraction proceedings.

Leaving the EU means we lose those governance, enforcement and accountability mechanisms, and new clause 62 requires the Government to ensure that environmental law is enforced after exit day. That is why my Committee called for a new environmental protection Act. The Government have said that that will not be necessary, so since they have refused to introduce such an Act, amendment 138 aims to preserve retained EU environmental law. Much of this environmental law will need technical corrections, and the unpicking of 40 years of legal ties to EU institutions and agencies is the biggest administrative and constitutional task that this country has faced since world war two.

[Stephen Kinnock (Aberavon) (Lab)]

Is my hon. Friend aware of the fact that at least half of the approximately 42 EU agencies that exist offer no provision for the participation of third countries? Could she perhaps ask Members on the other Benches how the Government can possibly build the necessary capacity when we are unable to participate in those agencies?

[Mary Creagh]

My hon. Friend raises an excellent point, which has also been raised by the European Chemicals Agency. Those registrations, which will have cost our businesses £250 million, will fall on exit day. I know that that particular agency does allow third countries to participate, but when I tabled a parliamentary question to various Departments about the work they had done to prepare to duplicate the work of those regulatory agencies, I got a series of flannel-type replies that essentially said, “We don’t know how much it is going to cost, we don’t know what the system is going to be and we haven’t really started the work.” That is simply not good enough. Businesses and citizens deserve certainty. We are going to need between 800 and 1,000 statutory instruments before exit day to correct retained law. In a letter to the Environment, Food and Rural Affairs Committee in September, the Environment Secretary said that there were 850 pieces of legislation relating to his Department that would no longer work after exit day unless they were corrected. That is an absolutely huge body of law.

Clause 7, as we have heard, gives Ministers powers to make regulations that they believe are appropriate—again, I dispute what “appropriate” might be—to

“prevent, remedy or mitigate…any failure of EU retained law to operate effectively”—

again, how do we know what the full scope of this clause will cover? This is a huge amount of law—

“or…any other deficiency in retained EU law”

where this arises from exit. The Bill’s explanatory notes contain a worrying and rather brazen example of what this means. They use the example of the UK having to obtain an opinion from the EU Commission, stating:

“In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body”—

should the Government decide to have one—

“or remove this requirement completely.”

Once we start to see the removal of reporting and enforcement requirements, we get to the heart of the Bill, which is that Brexit is a deregulators’ charter. This is about taking rights away and about ensuring that environmental and social rights are lost to our citizens. I do not want to see Ministers making those sweeping changes with no scrutiny in this place.

In part 1 of schedule 7, paragraph 3(2) waives the affirmative procedure for regulations where the Minister is of the opinion that

“by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.”

That basically says that the Government will not consult this House if the matter is urgent. They have said that they will accept the amendments tabled by the Procedure Committee Chair, the hon. Member for Broxbourne (Mr Walker), but those provisions could be waived if a Minister was of the opinion that the regulations were urgent. The Government want to pass 800 to 1,000 statutory instruments, 850 of which are in the environment sphere. Can anyone tell me which of those regulations will not be urgent, given that they need to be passed before exit day?

[Mr Baker]

May I reassure the hon. Lady that it is the made affirmative procedure that is available for urgent instruments, so the instrument would have to be laid before both Houses.

[Mary Creagh]

But that would still be the negative procedure—

[Mr Baker]

No, it is set out in the schedule. It is the made affirmative procedure, which means that once the instrument has been made, it must be laid for a resolution of both Houses.

[Mary Creagh]

I thank the Minister for that clarification.

What could possibly be watered down? The Environmental Audit Committee asked the Transport Secretary for a guarantee that air quality standards would not be watered down after Brexit, but he refused to give us that guarantee, saying that he found it

“hard to believe that any Minister is going to stand before this House and argue for a reduction in air quality standards.”

He is right. No Minister will have to stand before this House and argue for that, because the Bill does away with that requirement. We saw the Secretary of State for Exiting the European Union’s mask slip once before during his statement to this House on the White Paper, when he said:

“This is about reversing—well, not reversing but amending—and dealing with 40 years’ accumulated policy and law.”—[Official Report, 2 February 2017; Vol. 620, c. 1220.]

That was a Freudian slip that I return to time and again. We have also seen that from the Environment Secretary. Paeans have been heaped on his head, but in April, between his visiting Donald Trump in January and his rehabilitation to the Cabinet, he railed against the habitats directive, which he now somehow wants to protect from himself. He talked about homes in his constituency being governed by the habitats directive and how onerous it was for developers to have to offset their projects with green spaces. There is obviously more joy in heaven over one sinner who repents, but he was a deregulator before his damascene conversion. He is now deeply penitent, spending his day listening to the experts, and has since acknowledged that the environment needs to be protected from

“the unscrupulous, unprincipled, or careless”.

I wonder which of his colleagues he had in mind and who may yet succeed him at DEFRA.

How might Ministers go about watering down EU standards? The 2008 classification, labelling and packaging regulation or CLP regulation—CLP means something quite different in Labour terminology—is an example of direct EU legislation under clause 3, which will become retained EU law under clause 6. The CLP regulation aligns the EU’s system of classifying, labelling and packaging chemical substances. It enables chemical products to be traded in the European single market while protecting workers, consumers and the environment. It is why drain cleaners—the sulphuric acid that has been used in the terrible acid attacks—and paint strippers bear the red diamond hazard signs, with which we are all familiar. The regulation will need to be corrected after exit day, but the corrections proposed in the Government’s delegated powers memorandum show how the CLP regulation would be dramatically watered down.

The draft statutory instrument proposes to omit article 46 of the CLP regulation. Article 46 obliges the Government to enforce the safety standards in the regulation and to report on how well those standards are being enforced. In that draft SI, the Government say that because the Commission does not exist, they do not need to report to the Commission, and because they do not need to report, they do not need to enforce. This is a granular and detailed amendment, but that is the sort of thing that the proposed sifting committee will have to consider with an electron microscope to get to the heart of every single deficiency, some of which—with the best will in the world—will not appear until there is a legal challenge. We do not want the labelling and packaging of dangerous chemicals not to be enforced and not reported to any body. Some hon. Members may not be as sceptical as I am about Ministers’ intentions, but none of us can predict the future. We have had three Environment Secretaries in as many years.

Amendment 138 would protect retained EU environmental law, requiring Ministers to certify that they are satisfied that regulations made under clause 7 will not remove or reduce any environmental protection provided by retained EU law. That certification—similar to that created by the Human Rights Act—would be justiciable, meaning that it can be challenged in a court of law. An individual or group could apply for a judicial review if they felt that regulations made under clause 7 had removed or reduced environmental protection. That would not delay leaving the EU, but it would provide a vital check on the powers in clause 7, and it protects the protections.

16:15

The hon. Member for Broxbourne and I discussed yesterday how the new committee could do what I call the magic ping—alerting Select Committee Chairs to particular instances. That is one way of doing it. Alerting other Select Committee Chairs is another way, but of course that excludes Members of Parliament who may have an interest in a particular matter—a constituency, historical or professional interest—and we need to think about how those alerts go out and how they work across the House so that people who are interested and have something material to contribute do not suddenly wake up and find that a measure was passed two or three weeks ago and no one really understood what it meant. It is a modest change, and I look forward to working with the hon. Gentleman to make sure that that happens.

I want to look at how EU institutions monitor, enforce and update environmental standards. Member states are usually required to provide the Commission with reports. The Commission is a kind of environmental watchdog. It has bitten; it has used its teeth. In February this year it issued a final written warning to the UK to comply with the EU air quality directive. The UK’s response—the latest air quality plan—was published in April, and we await the Commission’s verdict on it.

The process ends with compliance or referral to the European Court of Justice, which can issue fines. We have heard how crucial that mechanism has been in securing environmental improvements. The threat of fines has certainly enabled DEFRA to punch above its weight in arguments with the Treasury. My Committee has heard how the Treasury has often ridden roughshod over DEFRA. In the autumn statement 2015 it cancelled the £1 billion carbon capture and storage competition. It scrapped the zero carbon standard for new homes. It failed to set a tax regime that would drive up recycling rates. However, if an environmental policy is linked to an EU obligation, with the threat of fines, that policy can often get through and escape the dead hand of the Treasury. After exit day this constitutional backstop for the environment will fall, and there is nothing in the Bill to replace it. Environmental law will be vulnerable to being watered down or quietly dropped at the stroke of a Minister’s pen.

How will the Government introduce new policies to tackle air pollution? How will the chemicals sector be regulated after exit day? It is not good enough to cross our fingers and say, as the Secretary of State said to me three short months ago, that we are going to regulate it “better.” We need a new environmental protection Act, which my Committee called for nearly a year ago, to monitor, enforce and update environmental standards. Conservative Members will say that since his return to the Cabinet the Environment Secretary has told us how that will be done. On 1 November he told my Committee that we would have no governance gap because there would be this new “Commission-like body”. During that Committee session that body metamorphosed into four bodies, one for each of the devolved nations. How on earth is that going to give regulatory certainty to businesses working across borders? How will this new body ensure compliance? Will it be able to fine Governments? Will it be independent of Government? Will it inherit the reporting obligations of the EU Commission? Who will it be accountable to? Who will determine its budget? Will it be underpinned by statute? Will it be ready before exit day? Since 1 November those questions have not been answered, although we have seen a speedy U-turn on animal sentience. I would like to see a very speedy U-turn, before Report, giving clarity on what the new environmental body will do and how it will be funded.

It would require significant constitutional innovation to create a UK domestic agency that was a clone of the EU Commission to perform these tasks. It is a necessary but not sufficient step, because it ignores the policy-making role that the European Commission and Parliament play in this vital area. The Environment Agency and the Health and Safety Executive, which have been posited as regulators in this area, cannot be the regulator, the police officer, the judge and the policy maker in this area. New clause 62 would therefore require this new agency to report to Parliament on progress on meeting targets in retained EU environmental law, and to publish reports on whether the Government are meeting or missing those targets, and make recommendations for extra action. Obviously, we are limited in what can be put in a new clause, and I want the Government to go much further in developing their ideas on this.

In conclusion, we have worked together with our European partners for 40 years to develop world-leading environmental standards, and we must not reverse that progress. We cannot simply cut and paste them, and we must make sure that we do not have zombie legislation. Those laws need to be kept alive and given power and teeth by being backed up with sanctions. We did not vote to transfer power from Parliament to Ministers, and I urge the Government to accept my amendment.

[Several hon. Members rose—]

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. I just ask Members to bear in mind that a lot of colleagues wish to speak and the Minister will be coming in at some point.

[Mr Charles Walker (Broxbourne) (Con)]

I certainly will bear that in mind, Dame Rosie, and thank you for calling me.

I rise to speak to my amendments 392 to 398. I am not going to read out each one for the benefit of colleagues, because all colleagues can read. The amendments have been covered by various colleagues, from both sides of the House, so I shall stick to discussing the broad principles, but I will of course be happy to answer any questions or criticisms that colleagues may have.

First, may I thank the Procedure Committee for its hard work in producing the report published on 6 November? It is worth pointing out to colleagues how well Select Committees perform in this place. We are obsessed—or all too often we give the impression that we are obsessed—with partisan politics. Of course when people tune in on Wednesday at midday, that is what they see in this place. Our report was agreed unanimously by 15 Members of Parliament, six of whom are Government Members and nine of whom are Opposition Members. It is important to get that on the record. Also important is the fact that we did not let the pursuit of perfection get in the way of sensible compromise.

I can understand that a number of colleagues here today are somewhat disappointed, or remain dissatisfied, with what the Government have brought forward, but, as we have heard from Opposition Front Benchers, Opposition Back Benchers, Government Front Benchers and Government Back Benchers, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), there is broad acceptance that these amendments are a very positive step forward. As Chair of the Committee, I of course endorse that view.

Let us not underestimate the powers that the sifting committee will have. A Select Committee is like water: it gets in everywhere and all too often into places where it is not welcome. So I am certain that with a good and strong chairman who is respected by both sides of the House, a committee comprising experts—committed parliamentarians—will do the right thing by this place.

[Chris Bryant]

The thing is that the hon. Gentleman’s Committee is chaired by a man who is respected by both sides of the House and much loved by many people in all parts of this House, yet his Committee has regularly produced reports that have been completely and utterly ignored by the Government. That is the problem: he is still asking us to trust the Government in the end.

[Mr Walker]

I count the hon. Gentleman as a great friend, and say to him that yes, all too often I have come to this place in a state of high dudgeon, deeply depressed by the performance of my Government’s Front-Bench team, but on this occasion I assure him that the Government have accepted amendments and tabled draft Standing Orders, which are available today for all colleagues to read, so progress has been made. I also remind the hon. Gentleman that the report had the support of every member of the Procedure Committee.

The hon. Member for Nottingham East (Mr Leslie) expressed concern about what teeth the sifting committee would have. It is absolutely right that, as he identified, the committee would not be able to insist that the Government change a negative statutory instrument into an affirmative one, because if it could, the committee could just turn around and say, “Right, we want every single negative SI to be affirmative, and that’s the end of it. Be on your way and we’ll see you in a couple of years’ time.” I do not think that would be sensible.

The political cost to my Front-Bench colleagues of going against a sifting committee recommendation would be significant. The committee will have to give a reason why it is in disagreement, the Minister will be summoned to explain his or her Department’s position, and it will be flagged up on the Order Paper if a particular SI has not been agreed between the sifting committee and the Government. That will result in a significant political cost, because what we do most effectively of all in this place is to generate political cost. When a Government fail, or even, indeed, when an Opposition fail, there is a cost to their credibility and reputation. It is important to highlight that.

[Dr Sarah Wollaston (Totnes) (Con)]

I congratulate my hon. Friend and the Procedure Committee, and I really welcome its proposals. Does he think that this idea should be extended to all statutory instruments?

[Mr Walker]

My hon. Friend tempts me so much. It is not my intention today to spook the Government, but I think the sifting committee will probably be so successful that the Government and the House will want to embrace it for all negative SIs going forward.

I listened to the concerns expressed by the hon. Member for Edinburgh East (Tommy Sheppard) about the performance of Delegated Legislation Committees. I share those concerns, but a Minister turns up at those Committees, and it is often we Members of Parliament who fail to hold that Minister to account. Indeed, the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker) is on the Front Bench, and I remember discussing this issue with him in the 1922 committee when he was but a humble foot soldier, like me. I remember a blog he posted early in his tenure in this place, in 2010, in which he expressed dismay at the lackadaisical approach of scrutiny in Delegated Legislation Committees. Again, that is not the Government’s fault; it is our fault as Members of Parliament. What is so refreshing about these eight days of scrutiny of the Bill on the Floor of the House is that right hon. and hon. Members of Parliament from both sides of the House and from all sides of the argument are turning up and holding the Government to account. It is our duty to do that in every Committee of the House.

I said I would be brief, and I think I have been. I hope I have covered most of the relevant concerns, but there is one further concern to which I would like the Government to respond. Several speakers have rightly identified that the Bill will result in up to 800 or 1,000 SIs—it could be more; it could be a little less. The Government have reassured us that the Cabinet’s Parliamentary Business and Legislation Committee will look at the workload to manage an effective flow without peaks and troughs. That is a useful reassurance, but the Government need to go further. There needs to be a system, which was identified by the hon. Member for Wakefield (Mary Creagh), where the House can have sight and pre-warning of what is coming. That might be difficult to achieve, but I hear what she is saying and think that it is a sensible suggestion. On that note, and accepting that all colleagues here have read the Select Committee report and the Government response, and are adequately familiar with the amendments, I shall sit down and not detain this wonderful place further.

16:29

[Tom Brake]

It is a pleasure to follow the hon. Member for Broxbourne (Mr Walker). He has set out a system, which will be tested the first time the Government refuse a recommendation from the Committee. Then we will see whether the system works in practice.

There are many, many amendments, cross-party in nature, which I will be supporting if they are pressed to a vote today, including amendments from the right hon. and learned Member for Beaconsfield (Mr Grieve), the hon. Member for Nottingham East (Mr Leslie), who opened this debate, the hon. Member for East Worthing and Shoreham (Tim Loughton), and many others whom I do not have time to mention. That underlines the cross-party nature of this whole matter.

There are a number of amendments in my name—a disparate group, ranging from EU citizens and the single market to EU agencies and their UK successors, and equality and human rights legislation. I shall focus principally on the single market and the equality and human rights legislation.

Amendment 124 is on the single market. Members here will know that I am very much after red meat when it comes to the single market: I think that the UK should stay in the single market permanently. However, in case Members here are reluctant to support the amendment, I wish to point out that that is not what it actually brings about. It is quite specific in ensuring that the Government cannot use regulation-making powers in a way that would lead the UK to diverge from the single market. On that basis, I hope that Members on both sides of the House will not see it as seeking to lock us into the single market permanently, which of course is what I would like to do; it is slightly less wide-ranging than that.

[Angela Smith]

May I take it from what the right hon. Gentleman has said that he is arguing that we should indeed be keeping all options on the table, including the single market, and that nothing is agreed until everything is agreed?

[Tom Brake]

Absolutely. Many Members on both sides of the House know that one of the most damaging things that the Government did from the outset was to rule out membership of the single market and the customs union—particularly the customs union. We can see what problems that has caused in relation to Ireland and Northern Ireland. Even now, that can has simply been kicked down the road. The issue has not been resolved in any shape or form.

It is probably fair to say that people, including Members in this House, now have a much clearer understanding of exactly what the single market is. I know that there are Members, particularly on the Government Benches, who claim that, during the course of the EU referendum campaign, people had a very clear idea of what the single market was and what the customs union was; they did not want to be in them. Frankly, I do not believe that to be true. It may be that some of those Members had in their constituencies a trade specialist or an economist who knew precisely what the single market and the customs union were, but I am afraid that, broadly speaking, there was not a great degree of awareness of what they constituted—I am talking about the fact that the single market ensures that UK companies can trade with the other 27 EU countries without any restrictions and without facing arbitrary barriers. That is why it is essential that people support this amendment.

I hope that, in the longer term, the Government will see sense and realise that it is in the UK’s economic interests to stay in the single market and the customs union. I know that my amendment has cross-party support, but I hope that I will also get support from the Labour Front-Bench team, because that will reinforce the message that I am hearing from the Labour party that it is committed to the single market and customs union for the transition period. What I need to hear is that, beyond the transition period, there is also a commitment to the single market and the customs union. The Labour Front-Bench team say they are worried about jobs, and such a commitment is the best way of securing jobs in the United Kingdom. I hope I will get support for that; I will be pressing amendment 124 to a vote.

[Mr Ben Bradshaw (Exeter) (Lab)]

I am sure that the right hon. Gentleman will get a lot of support from the Labour Benches if his amendment is pressed to a vote. To be fair to our Front Benchers, they have made it clear that they think the option of staying in the single market and the customs union should remain on the table after the transition. The right hon. Gentleman was not quite fair in his description of our Front-Bench policy as I understand it.

[Tom Brake]

All right—the right hon. Gentleman is probably closer to his Front Bench’s policy than I am, certainly in respect of the understanding of it, if not necessarily the direct input. I hope that Labour may be able to take things one step further: to make staying in the single market and the customs union not an option but the party’s actual policy. As I said in an earlier intervention, staying in the single market was in the 2015 Conservative manifesto, which also mentioned the benefits of doing so.

I turn to amendments 363 and 364, and a number of other related amendments, which are on equality and human rights law. The amendments are needed to prevent changes to fundamental rights being made without full parliamentary scrutiny. The Bill permits Ministers to amend laws, including Acts of Parliament, by delegated legislation. The Government have said that the powers will not be used for significant policy changes and that current protections for equality rights and workers’ rights will be maintained. I welcome those commitments, but in order to protect fundamental rights, it is essential that they are guaranteed by reflecting them in the extent of the delegated powers in the Bill.

Many other Members have quoted the House of Lords Delegated Powers and Regulatory Reform Committee, so I will not. That Committee has expressed strong concerns about the Government’s approach, as has the House of Lords Constitution Committee, which it might be worth quoting. It believes:

“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.”

That point has been repeated by many Members during these days of debate.

I welcome the fact that the Bill already prevents the use of delegated powers to amend the Human Rights Act 1998, which, of course, recognises the importance of the rights it protects. However, if the Bill does that for the Human Rights Act, I do not quite understand why it does not protect the rights in other Acts. The Equality Act 2006 and the Equality Act 2010 must also be protected, as must the Employment Rights Act 1996 and secondary legislation such as the Working Time Regulations 1998, which were mentioned in an earlier contribution. My amendments would protect the rights in such legislation. I am unlikely to press them to a vote, but the Labour party’s amendments 25 to 27 are similar. In fact, they could be improved by providing equivalent protection to the Equality Act 2006.

In the first day in Committee, the Government made a commitment to table amendment 391, which they have done. I welcome that, but I would like the Minister to clarify one point. I think it was the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), who said that the Government would ensure that they would address

“the presentation of any Brexit-related primary or secondary legislation”—[Official Report, 21 November 2017; Vol. 631, c. 904.]

But as far as I read it, the amendment refers only to secondary legislation. I am not sure whether that means that there will be further amendments, that the Minister misspoke originally or that we are to expect more. Perhaps the Minister will pick up on that point when he responds.

I have a couple more minutes, in which I will refer briefly to EU citizens’ rights. Now, I hope that people are not under the impression that, in moving on to phase 2 of the negotiations, EU citizens in the UK or UK citizens in the EU are happy with where we are at; clearly, they are not. Some 3 million EU citizens in the UK still have significant concerns around the time limits being placed on certain protections. They are also concerned about the all too frequent errors that occur in the Home Office—something with which we are all too familiar—which they anticipate leading to a large number of problems with the proposed changes regarding their status. Nor are UK citizens in the EU any happier with the outcome, and they are as critical of the EU as they are of the UK Government in terms of the speed with which they have moved on. However, as has been said in the debate, given that nothing is agreed until everything has been agreed, those issues can still be pursued.

The final point I want to make relates to amendment 121. If I had had time, I would have read out the list of 21 organisations, although by the sounds of it, given the earlier intervention on this issue, I have missed about 19 organisations, because there are more than 40. However, I would have liked to ask Members present, in a moment of truth and honesty, whether any of them had anticipated that all the organisations on the list would be affected by our leaving the European Union—if, indeed, we do leave, because nothing is certain on that front. I suspect that not a single Member here would have claimed, if they had answered honestly, that they knew of each and every one of those organisations.

We are going to have to go through a costly process of creating our own organisations, with heavy costs attached to that. The purpose of the amendment is simply to ensure that the Government are not able to create these new agencies, or to give substantial new powers to existing agencies, by way of delegated legislation, because that is the sort of thing that needs to be done through Parliament and through primary legislation.

Thank you, Dame Rosie. I think I have kept within your time limit. I would just like to reinforce the point that I will be pressing amendment 124 to a vote, and I hope I will receive support from both sides of the House for it.

[Anna Soubry]

It is a pleasure to follow the right hon. Member for Carshalton and Wallington (Tom Brake), and I will indeed support his amendment 124 when he presses it to a vote. It is, effectively, about the benefits of the single market and making sure that, as much as we can, we retain our membership of it, especially after we have left the European Union.

I rise to support all the amendments I have signed, which are mainly those that have been drafted by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I also rise to support the amendments tabled by my hon. Friend the Member for Broxbourne (Mr Walker), and I congratulate him and his Committee on coming up with their proposals. I also thank him for reassuring some of us who were concerned that this creature that was created, quite properly, to address the concerns that many right hon. and hon. Members identified on Second Reading might not have any teeth. However, he explained that the effect of sanctioning a Minister, as he quite properly identified it, has political consequences that do the job. On that basis, I am content with the proposed new committee. Obviously, I have concerns, but I am delighted that the Government have accepted the relevant amendments.

If it is pushed to a vote, I will also vote for amendment 49. I thought that the speech by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) was admirable. In fact, her amendment is hardly revolutionary; it is an entirely proper amendment to this important piece of legislation and this clause. It uses the word “necessary”, and I think that that was the word used in the original White Paper. I will therefore be supporting the amendment.

I pay tribute to my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) for his probing amendment. If I had got round to it—I have signed so many amendments—I would have signed his, for what that is worth. In looking at his speech in particular, and at so many of the other speeches we have heard today, it is really important to understand what people like and do not like about this place and, indeed, about politicians. The public actually like it when we agree across parties; people mistake that. I am not saying that the public do not enjoy some of the spectacle of Prime Minister’s questions—there is nothing wrong with a good hearty debate and row on points that will forever divide us; they identify our political beliefs and parties. However, on those occasions when we agree, the British public absolutely like it.

16:45

The big mistake that the Government have made—I really hope that they will now look deeply into this—is to assume that the normal rules apply in relation to this Bill and all matters to do with Brexit. This is a unique Bill and this is a unique situation. Never before have we had a referendum that has so divided the British people. These are things that we have to understand and say. It was a very close result. Only 52% of those who voted voted for us to leave the European Union, and 48% of those who voted voted for us to remain. If that result had been reversed, I think we all know what would have happened. The people in the 48% would not have packed up their toys and said, “Fair do’s, everybody, I’m off now. I won’t carry on banging on about Europe because the matter has been settled and I accept the result.” We can be absolutely sure that with that difference of 48:52, they would have pursued a lifetime’s habit and kept banging on because of the narrowness of the vote.

[Jess Phillips (Birmingham, Yardley) (Lab)]

May I introduce you to Bill Cash?

[Anna Soubry]

I did not hear what the hon. Lady said, but I am sure that Hansard did, so I will move swiftly on.

I say to those on the Treasury Bench, and anybody else who might be listening to this speech, that the profound difference between those people and people like me—right hon. and hon. Members on both sides of the House, right across these green Benches—is that we have accepted the result, although it may break our hearts to do so. That is quite a dramatic statement, but many people are genuinely upset that we are going to leave the European Union. Nevertheless, they have accepted the result even though it goes against everything that they have ever believed in. They have not only accepted the result, but then voted to trigger article 50. One of the things that saddens me as much as it saddens me that we are going leave the European Union—probably more so—is the inability of the people who supported and voted for the leave campaign to understand and respect those of us who were remainers, who voted to trigger article 50, and now genuinely say that we are here to help deliver this result to get the best deal that we can as a country, putting our country before our own views and before our party political allegiances.

It may be that some leavers, especially some people in Government or formerly in Government, cannot accept that because unfortunately—I am going to have to say this—they judge people like me by their own standards. For people to say that by tabling an amendment one is somehow trying to thwart or stop Brexit is, frankly, gravely offensive. That level of insult—because it is an insult—has got to stop. People have to accept that there is a genuine desire certainly among people on the Government Benches, and on the Opposition Benches, to try to come together to heal the divide and get the best deal for our country.

[Angela Smith]

Does the right hon. Lady accept, too, that a significant proportion of the voters who voted leave would agree with her that the hijacking of the leave argument by a small minority is damaging the debate?

[Anna Soubry]

I very much agree with the hon. Lady. It is not right and it is not fair. It also, as she rightly identified, does not reflect leave voters. We have got ourselves into a ludicrous situation whereby a very small number of people in this place, in this Government, and indeed in the country at large, suddenly seem to be running the show. That is not right, because they do not reflect leave voters, who, overwhelmingly, are pragmatic, sensible people who unite with the overwhelming majority of people who voted remain and who, frankly, want us all to get together, move on, get the best deal, and get on with Brexit.

That, I think, is where the British people are. I think they are also uneasy, worried and rather queasy because of all the things that we have spoken about in this place. They now realise, as I think my hon. Friend the Member for East Worthing and Shoreham said, that it is very difficult, this Brexit. It is indeed difficult to deliver it, and many people thought from the rhetoric of the leave campaign that it would be oh, so easy. Indeed, others—such as the Secretary of State, who is beautifully arriving in the Chamber—believed that a trade deal would be done in but a day and a half.

I am being pragmatic, so I am not going to make any more such points; I am going to try to move the discussion on. But I urge all members of Her Majesty’s Government, especially those in the most important positions, to please reach out to the remainers—now often called former remainers—who made up the 48%. I urge those Government members not to tar us with the paintbrush that they may have used for many years, but to try to build a consensus. That means that the Government need to give a little bit more than they have given so far.

The reason why I support the single market, the customs union and the positive benefits of immigration is not that I am some treacherous mutineer. My hon. Friend the Member for East Worthing and Shoreham is hardly some sort of Brexit mutineer, but he is an excellent example of someone who quite properly tables a probing new clause because he is doing his job as a Member of Parliament. That is why amendments have been tabled by all manner of people, and they have been supported in a cross-party manner to a degree that apparently has not been seen for a very long time. That is commendable.

I am no rebel, because like many of my former Back-Bench colleagues who now sit on the Front Bench, I made it very clear to the good people of Broxtowe that I was standing as a Conservative but I did not endorse my party’s manifesto in relation to the single market and the customs union. Sitting on the Front Bench today are hon. Members who, in the past, stood quite properly in their constituencies as Conservatives while making it very clear that they did not support our party’s policy on the European Union and would campaign for us to withdraw. I make no criticism of that. I say, “Thank goodness,” because that is what we want in a good, healthy democracy. But it is ironic, is it not, that the Secretary of State has rebelled, I think, some 30 times on European matters?

[The Secretary of State for Exiting the European Union (Mr David Davis)]

More.

[Anna Soubry]

He says, “More.” I do not criticise him for doing so. I bet he has never been called a Brexit mutineer—well, he would not have been called a Brexit mutineer, but I am as sure as anything that he has not been abused in the same way as other people who have had the temerity to table an amendment and see it through. The Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker) rebelled, I think, some 30 times between 2010 and 2015. He and the Secretary of State will understand how important it is for us, having made our case clear to our electorate, to be true to the principles on which we stood and got elected. When we come here, if we do nothing else, we must surely uphold those principles—our mandate—by tabling amendments and voting for them.

If the Government are genuine about getting a good deal and healing the great divide—I very much hope that Ministers understand the damage that is still being caused to our country and the importance of healing the divide—they must reach out tomorrow, if not today, and do the right thing so that we get the right result. That will enable us to build on the consensus that broke out on Friday and move forward with delivering Brexit to get the best deal for everybody in our country.

[Jess Phillips]

I associate myself with the comments of the right hon. Member for Broxtowe (Anna Soubry). I agree entirely with her on this, as well as on a great many other things. I take the hon. Member for Stone (Sir William Cash) as my inspiration: if I cannot get what I want, I will just wait 40 years—saying the same thing—and it may come around again.

I will speak to amendment 385 and new clause 77, which are in my names and those of right hon. and hon. Friends, as well as right hon. and hon. Members from other parties. In the White Paper published earlier this year, the Government committed to continuing to work with the EU to preserve European security, to fight terrorism and to uphold justice across Europe, yet no mention at all was made of plans to continue the work, post-Brexit, with their European partners to protect women and girls fleeing violence. I need not really point to the lack of a certain sort of Member of Parliament—those with a certain chromosome—in the Brexit team or among those currently on the Treasury Bench as to why that was the case.

This omission is stunning given the current state of affairs in the UK. An estimated 1.3 million women in England and Wales experienced domestic abuse last year alone, while 4.3 million women will have experienced domestic abuse at some point since the age of 16. In addition, about one in five women will experience stalking or sexual assault at some point in their lifetime. Despite that desperately worrying state of affairs, the Government have so far failed to guarantee that such survivors of violence will enjoy the same legal protections post-Brexit as they do now.

Amendment 385 would at least retain one aspect of this protection. In February 2016, history was made in the Hammersmith specialist domestic abuse court, when the first European protection order was issued in England and Wales. This enabled the survivor to move to Sweden, enjoying protection in both the UK and Sweden. In the same year, another survivor was issued an EPO, allowing her to move to Slovakia safely. The UK has also recognised a number of EPOs issued by other EU member states in 2015 and 2016, meaning that these survivors were protected on entry to the UK. According to data provided by the European parliamentary research service, Britain makes disproportionate use of the framework, accounting for almost half of all orders granted in 2015 and 2016.

[Mary Creagh]

Does my hon. Friend think that the fact that we are disproportionately represented in that way reflects the UK’s status as both a transit point and a destination for people trafficking? It would be abhorrent if the process of leaving the EU afforded less protection to such survivors.

[Jess Phillips]

Absolutely. I cannot give with any real certainty the exact reason why Britain uses the orders more than anywhere else, except for the fact that—I can definitely say this—our human trafficking rates are much higher compared with other European countries. The issue that worries me is that British Governments of many colours over many years have prioritised domestic violence services and protection orders in relation to human trafficking, and it would be a real stain on what is not a bad reputation for this Government—certainly on human trafficking—if we undid some of the protections that we rely on very heavily in the realm of human trafficking.

While the number of EPOs granted since their inception is still quite small, because the framework is very young—let us say that, in its infancy, it is the hon. Member for Birmingham, Yardley compared with the hon. Member for Stone—there is no telling how the uptake may increase in the future. We must certainly not deprive survivors making use of the orders of what they have been guaranteed so far, otherwise they will continue to be vulnerable and to be abused. Amendment 385 would ensure that, at the very least, UK courts continued to recognise EPOs issued by EU member states.

There are a great many other ways in which the UK co-operates with the EU on issues such as human trafficking, female genital mutilation and forced marriage. Such issues are prevalent in many parts of the country. For example, in 2010, up to 900 schoolgirls across Birmingham were at risk of FGM. One in five children in Birmingham will have experienced or seen domestic violence before they reach adulthood, and at least 300 forced marriages take place in the west midlands every year.

17:00

New clause 77 would ensure that the Government must report to Parliament on how much progress they have secured on all forms of co-operation with the EU to tackle violence against women and girls. It also speaks to the issue of funding for specialist services that support victims of violence and domestic abuse, and research into ending violence against women and girls. Post Brexit, UK-based services will no longer be eligible for several generous pots of money currently provided by the EU. For some organisations, such as the Iranian and Kurdish Women’s Rights Organisation, that could mean a drop of up to 40% in their funding. Without a replacement, those organisations simply will not survive. My new clause would require the Government to make an assessment of just how much money UK organisations stand to lose post Brexit and how they are planning to replace it.

Given that amendment 385 and new clause 77 are endorsed not only by 21 Labour MPs, but by Members from almost every party, including the Conservatives, will the Minister please tell the Committee whether the Government will accept the principle of the amendments?

[Mr Baker]

I rise to speak to clause 7 and to amendment 391, tabled by my right hon. Friend the Secretary of State, which puts the Government’s commitment to transparency into the Bill by requiring that the explanatory memorandums relating to each statutory instrument must include a number of specific statements. I would like to put it on the record that the Government will support the amendments tabled by my hon. Friend the Member for Broxbourne (Mr Walker) on behalf of the Procedure Committee—I will be happy to move them formally if the Chair does not call them for separate decisions. I see from my speaking notes that I am due to speak to approximately 134 amendments, so I apologise in advance if I deal with any of them superficially.

The Government do not propose delegated powers lightly; we do so only when we are confident that secondary legislation is the most appropriate way to address an issue. This House is right to guard jealously its rights and privileges. It is for the purpose of taking back control to this Parliament that millions of people voted to leave the European Union. We want to limit any powers that we are seeking, in so far as we can, while ensuring that they can meet the imperative of delivering a working statute book on exit day.

The power in clause 7 is essential to achieve continuity and stability in the law. The day the UK leaves the EU is drawing ever nearer. If we simply stop at converting and preserving retained EU law, the day after exit the UK statute book will contain many thousands of inaccuracies, holes and provisions that are not appropriate. That would have real-world consequences, leaving errors in the laws that businesses and individuals, sometimes unknowingly, rely on every day. I am grateful that the general premise that we need to take these steps has been accepted by Members on both sides of the Committee and on the Labour Front Bench.

The power in clause 7 is intrinsically limited. As I and other Ministers, including the Secretary of State, have said from this Dispatch Box, it is not a power for Ministers to change law simply because they did not like it before we left the EU. Clause 7(1) is clear that Ministers may only do what is

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.”

If an issue does not arise from our withdrawal from the EU, Ministers may not amend the law using the powers in the clause.

Clause 7 is required to address failures to operate and deficiencies where the law does not operate effectively—for example, with reciprocal arrangements between the UK and the EU that have not formed part of any new agreement. Subsection (2) illustrates what these deficiencies might be. The clause is also subject to a number of direct limitations: it sunsets two years after exit day; and, as listed in subsection (6), it cannot impose or increase taxation, make retrospective provision, create certain types of criminal offence, implement the withdrawal agreement, amend the Human Rights Act 1998 or amend some sections of the Northern Ireland Act 1998.

[Sir Oliver Letwin]

Will the Minister clarify from the Dispatch Box that Opposition Members’ assertions that it would be possible under the provisions for the Government to introduce secondary instruments that changed the safeguards in the Bill are misplaced because no court would allow that to happen under the provisions of appropriateness and deficiencies?

[Mr Baker]

I am very grateful to my right hon. Friend. I will come on to the specific differences between clause 7 and clause 9 in relation to the power to amend the Act, but I will say now that the Act itself cannot be amended under clause 7. I will come on to develop that point later.

Clause 7(5) lists some possible uses of the power. These could range from fairly mechanistic changes to correct inaccurate references, to more substantial changes to transfer important functions and services from EU institutions to UK equivalents. Both types of change are important to keep the law functioning appropriately. At this stage, we do not know for certain what corrections might need to be made. The negotiations continue and there is a large volume of law to correct in a short space of time.

[Mr Leslie]

Will the Minister give way?

[Mr Baker]

If I may, I will explain my approach to interventions, which I should have mentioned at the beginning of my speech. My speech has about 24 sections to address the 130 amendments that have been tabled. With respect to the hon. Gentleman, I would like to finish speaking on clause 7 stand part before I come on to his amendment. If he will allow me, I will give way to him then.

Secondary legislation made under this power is subject to entirely normal parliamentary procedures. I will come on to talk more about how we ensure sufficient scrutiny of secondary legislation when I speak to the amendments. The Government have always been clear that we will listen to the concerns of Parliament during the passage of the Bill and reflect on its concerns. We are committed to ensuring that Parliament has the right opportunities to scrutinise the Bill and its powers, so I am glad to have the opportunity to address concerns that have motivated many Members to table amendments to the scrutiny provisions in the Bill, alongside the debate on the powers themselves.

We should, however, all be in no doubt that without this power vital functions could not be carried out because they would not be provided for in our law. The UK could have obligations to the EU still existing in statute that would not reflect the reality of our new relationship. There would be confusing errors and gaps in our law. I say again that we do not take lightly the creation of delegated powers, but neither do we take lightly the imperative to deliver a stable, orderly exit that maximises certainty for the UK. Clause 7 is essential to achieving that task.

New clause 18, tabled by the hon. Member for Nottingham East (Mr Leslie), calls for an independent report into the constitutional implication of the powers in clause 7. There have already been a number of such reports and this is likely to continue. For example, the report he suggests sounds similar to the excellent and thoughtful report published recently by the Exiting the European Union Committee. A requirement for one more report after Royal Assent would, it seems to me, add little to the Bill and the definition of its powers. I reassure the House that the Government have listened to Members and to the Committees that have reported on the Bill.

I will turn a little later to amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, but I am glad to report that the Government said yesterday that we would accept the amendments to enhance scrutiny of the powers through a sifting committee. Taken together with Government amendment 391 on the content of explanatory memorandums, we believe the amendments deliver more than the sum of their parts, so the House can be assured of the effective scrutiny of the powers in the Bill. I hope that reassures the hon. Member for Nottingham East, but I will give way if he still wishes to intervene.

[Mr Leslie]

The Minister mentioned clause 7(5) in relation to the regulatory powers to replace, modify or abolish public service functions. He will know that one of my amendments would delete the Government’s ability to abolish functions by those orders. I wonder whether he could give us examples of public service functions or regulatory activities currently undertaken that the Government may wish to abolish.

[Mr Baker]

I will come back to that later, but I can tell the hon. Gentleman for a start that the translation functions of the European Union and various institutions will no longer be required.

I come now to amendment 1, from my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It has support from all sides of the Committee including, I do not mind telling him, from me, in spirit. The Secretary of State has asked me to put on record that he, too, is sympathetic to the idea of narrowing the Ministers’ discretion. My right hon. and learned Friend seeks to restrict the power of Ministers to make regulations to amend retained EU law to cases where the EU law is deficient only in the way set out in the Bill.

We have listened carefully to my right hon. and learned Friend, my hon. Friend the Member for Weston-super-Mare (John Penrose) and others, and the specific proposal in amendment 1 and amendment 56, tabled by the hon. Member for Nottingham East, is to convert the illustrative list of potential deficiencies in the law in clause 7(2) to an exhaustive list. As my right hon. and learned Friend knows, we do not think that it is possible to do that at this stage.

We know that there will be thousands of deficiencies across our statute book and it is impossible at this stage definitively to list all the different kinds of deficiencies that might arise on exit day. To attempt to do so risks requiring significant volumes of further primary legislation on issues that will not warrant taking up parliamentary time. The specifics of the deficiencies will inevitably vary between cases and it will therefore not be possible to provide a definition that accompanies them all, as amendments 264 and 265, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), also seek to do. An exhaustive list would risk omitting important deficiencies, so rendering the powers in clause 7 unable to rectify the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation, such as technical detail, readability and, crucially, the management of time.

We cannot risk undermining the laws on which businesses and individuals rely every day. Our goals are to exit the EU with certainty, continuity and control. However, I listened extremely carefully to the speech made by my right hon. and learned Friend the Member for Beaconsfield, my constituency neighbour, and to his appeal for us properly to consider this issue. I hope that he will not mind my saying that I think that we have already properly considered the issue, but we are perfectly willing to work with him and others to continue to reflect on this point with an eye on Report. We heard a very informative intervention on this point from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). My right hon. and learned Friend will know that we are wrestling with the susceptibility of what we do to judicial review, which might undermine the certainty that we are trying to deliver.

[Mr Grieve]

I understand that, and I realise that I am setting a bit of a challenge. Of course, amendment 1 is only one way to deal with this. Interestingly, amendment 1 is the least justiciable route because of its clarity. Other amendments, such as amendment 2, do raise the issue of justiciability. One way or the other—I put this challenge to my hon. Friend—the Government will have to come back with something that tempers the starkness of these powers. I leave it to my hon. Friend’s discretion, which is precisely why I have not tried to fetter him over this.

[Mr Baker]

I am grateful to my right hon. and learned Friend for that intervention.

[Mr Cox]

I wonder whether my hon. Friend might be attracted by this idea. At the moment, as drafted, the clause gives an inclusive, non-exhaustive list of examples, but I wonder whether the principle of ejusdem generis might not assist us if it were slightly redrafted. One could draft it so that any extensions beyond the inclusive list had to be of the same kind or species as those that were listed. That might give some comfort, if they have to be of a similar character to those enumerated in the Bill.

[Mr Baker]

I am extremely grateful to my hon. and learned Friend, and I would be happy to meet him, our legal team and my right hon. and learned Friend the Member for Beaconsfield to take their suggestions on board. I am keen to address this, and I know that the Secretary of State is keen to do so, but I am not in a position today to have tabled or accepted an amendment. I ask them to bear with me and have further meetings with us and our legal teams to try to find a way through.

[John Penrose (Weston-super-Mare) (Con)]

The Minister is being very generous and carefully considered in his responses. May I just check what he has said? Is he saying that he intends, if he can, to bring forward an amendment, perhaps on Report, to fix this, after these conversations have taken place, given the sympathy he says both he and the Secretary of State have for the amendments, or is he unable to give that promise to the Committee?

17:15

[Mr Baker]

I will be very straightforward with my hon. Friend: we are keen to move on this issue, but, as several hon. and learned Friends have acknowledged, it is a tricky issue, so we will need to reflect further on how a movement might take place. The Attorney General, who is in his place, and the other Law Officers are well aware of this issue, but we are conscious of the imperative of being able to deal with deficiencies in the statute book, as well as of the advice of hon. and learned Friends.

[Mr Grieve]

I am sure that the Minister will deal with this on some of the other amendments, but the other limb of this is whether certain categories of retained EU law need special protection. All that, I suggest, needs to be looked at as a whole. I am convinced that if the Government do that, they will probably be able to come up with the right solution, and one that commands the confidence of the House.

[Mr Baker]

I will come to that a little later, but I hope that my right hon. and learned Friend will allow me to move forward.