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.

[Sir Edward Leigh (Gainsborough) (Con)]

Will my hon. Friend allow me to intervene?

[Mr Baker]

I will give way once, but then I will make some progress, because I am 15 minutes in already.

[Sir Edward Leigh]

My hon. Friend has taken several interventions. Some of us have loyally supported Ministers throughout this process, and we want him to be robust, keep his lead in his pencil, deliver the Bill and ensure that none of our laws are left in limbo. I encourage him to the last.

[Mr Baker]

I am extremely grateful to my hon. Friend for his robust support, and I shall certainly watch out for my lead.

Our approach is to provide for the greatest possible scrutiny and transparency of the statutory instruments as they come forward. We began that process of providing transparency in the delegated powers memorandum accompanying the Bill, and in recent days we have published further information on how clause 7 would be used, including yesterday two draft SIs in the key area of workers’ rights, but there is more we can do to provide for scrutiny and transparency, which brings me to amendments 391 and 392 to 398, which will come before the Committee for a vote tomorrow.

I am pleased to repeat that the Government intend tomorrow to accept amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, who is not here, but who nevertheless is a great champion of Parliament against the Executive, as he has demonstrated on multiple occasions. The Procedure Committee, which he chairs, agreed the amendments unanimously. I pay particular tribute to the Delegated Powers and Regulatory Reform Committee, whose report informed the Committee’s work, I understand. If his amendments are not moved separately, the Government will be happy to move them formally at the appropriate moment.

The amendments will establish a sifting committee in the House to look at instruments made under the power in clause 7 and two other key powers in clauses 8 and 9. I draw the Committee’s attention to the draft Standing Orders that my right hon. Friend the Leader of the House has published to establish a new Select Committee to consider the negative instruments in the way that my hon. Friend the Member for Broxbourne proposes. The amendments draw on the expertise of the Procedure Committee, and the Government believe that they offer a solution that will give transparency to the House over the Government’s choice of procedure and ensure that the House can recommend that any negative instrument under clauses 7 to 9 instead be debated and voted upon as an affirmative instrument.

The Government have also tabled amendment 391, which will place our commitments to transparency in the Bill and require that explanatory memorandums relating to each statutory instrument include a number of specific statements. The amendments are aimed at improving the scrutiny and transparency of the SIs that are to come. If the House accepts them, they will together be more than the sum of their parts. The combination of the proposals of the Committee and the Government will mean that any deficiency the Government identify in retained EU law will be transparent to the House. In the light of this information, or any other concerns, the House will have a mechanism to propose a negative instrument for the increased scrutiny provided by a debate and a vote in the House.

I particularly noted what my right hon. Friend the Member for Broxtowe (Anna Soubry) said about the political costs of not complying with the Committee’s recommendation. She nods; I am grateful. I am confident that, given that this proposal is in harmony with the way in which other Select Committees work in relation to the Government, it will provide an adequate means of holding Ministers to account on the choice of procedure.

[Mary Creagh]

In the absence of the hon. Member for Broxbourne (Mr Walker), whose proposal this is, does the Minister envisage introducing the enhanced sift procedure—the mechanism for informing other Select Committees or Members with a particular interest in a subject—on Report?

[Mr Baker]

The hon. Lady has put her point on the record, but what we are doing is accepting the amendments tabled by my hon. Friend the Member for Broxbourne. I also draw her attention to the Standing Orders.

A number of Members have referred to the general need for a reform of the scrutiny of statutory instruments. I spent a very informative weekend reading the Hansard Society’s book “The Devil is in the Detail”, which I recommend to any Member who wishes to be fully apprised of the case for the reform of delegated legislation, but I must add that this is not the moment for a complete reform of secondary legislation. What we need to do is accept the amendments from the Procedure Committee, and to move forward.

[Vicky Ford]

Will my hon. Friend give way?

[Mr Baker]

I hope that my hon. Friend will forgive me if I do not. I am very conscious that I am only 20 minutes into my speech.

[Vicky Ford]

May I ask my hon. Friend to give way on this point?

[Mr Baker]

I will do so just the once.

[Vicky Ford]

May I make a very brief observation about the sifting committee and the expertise? In my experience, the scrutiny of detailed European legislation is sometimes best performed by people with expertise in it. That is why the House of Lords EU Committee has sub-committees on financial affairs, external affairs, energy and environment, justice, home affairs and so forth. Would my hon. Friend at least consider using a sub-committee of that kind, given that it might enable him to complete the sifting process more quickly?

[Mr Baker]

I think that my hon. Friend has made a strong case for her membership of the sifting committee. I hope that, if the Whips Office has heard her appeal, she will become a member in due course and will enjoy it very much indeed.

Let me now deal with amendment 2. Conditions similar to those in the amendment, tabled by my right hon. and learned Friend the Member for Beaconsfield, are proposed by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in amendment 48. Again, we have significant sympathy with the intention behind the amendments. However, they would introduce new terms into the law and invite substantial litigation, with consequent uncertainty about the meaning of the law as we exit the EU.

[Mr Grieve]

Will my hon. Friend give way?

[Mr Baker]

May I just finish making my case? I must point out to my right hon. and learned Friend that I can speak for two or three hours if I take all the interventions, or I can press on.

I hope to give the Committee some reassurance. Any provision made under clause 7 must be an appropriate means of correcting a deficiency in retained EU law arising from withdrawal. It is a strong test, and it represents a significant limit on the provisions made under clause 7. The limit can ultimately be guarded by the courts, although I note what my right hon. and learned Friend said about that. However, the right place in which to determine which changes in the law are appropriate is Parliament, which is why I hope Members will accept that their concerns have been addressed by the provisions that we have made for greater scrutiny and transparency in the case of each statutory instrument.

[Mr Grieve]

I have noted my hon. Friend’s comments, and I appreciate them, but may I take him back for a moment? All these issues are linked. I acknowledge the contribution from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but let me return to the discussion of amendment 1. One possibility might be that the list could only be added to by a statutory instrument. After all, given the extensive powers in the Bill, it would present a double lock. If the Government wanted a new power, or area of power, they could secure it through an SI anyway, because of the extent of the power that we are giving to them. The Minister might like to consider that point.

[Mr Baker]

I shall return to the clause 7 versus clause 9 argument a little later.

Amendments 3 and 4 were also tabled by my right hon. and learned Friend. The Government agree with his goal of ensuring that instruments under the Bill are accompanied by all the information that the House, the public and, indeed, the sifting committee need in order to understand what they can do and why. We also agree that more can be done to ensure that the House has the proper opportunities to scrutinise the instruments. As I have said, the Government have therefore accepted the amendments tabled by my hon. Friend the Member for Broxbourne, and we will also table amendments to address long-standing concerns about information. The Government believe that the proposed committee represents an option that balances our concerns about the ability to plan and the limited time available before exit day with some Members’ well-stated and long-standing concerns about the efficacy of the scrutiny of negative SIs in this House. Those amendments will address the unique challenge posed by the secondary legislation under this Bill, ensuring that the Government’s reasoning on procedure is transparent to the House and that the House can recommend that any negative instrument should instead be an affirmative one.

Beyond all that, the Government have tabled amendment 391 which will require that explanatory memorandums are alongside each SI and include a number of specific statements aimed at ensuring the transparency of SIs that are to come, and act as an aid to this House, providing more effective scrutiny. These statements will explain, for instruments made under the main powers in this Bill, what any relevant EU law did before exit day, what is being changed, and why the Minister considers that this is no more than is appropriate. They will also contain information regarding the impact of the instrument on equalities legislation. The wording of our amendment and that of my hon. Friend the Member for Broxbourne differs from that proposed by my right hon. and learned Friend the Member for Beaconsfield, but, as he has said, he has put his name to it and I am pleased that we are therefore able to move forward.

I turn now to the issue of what is necessary and amendments 49, 65, 205 to 208, 216 and new clause 24. Amendments 49 and 65 bring us to the important debate about whether the power in clause 7 should allow necessary corrections or appropriate corrections. “Necessary” is a very strict test, which we would expect to be interpreted by a court as logically essential. Where two or more choices as to how to correct EU law are available to Ministers, arguably neither would be logically essential because there would be an alternative. Ministers therefore need to choose the most appropriate course. If two UK agencies, such as the Bank of England or the Financial Conduct Authority, could arguably carry out a particular function, the Government must propose which would be the more appropriate choice. Also, if the UK and the EU do not agree to retain an existing reciprocal arrangement and the EU therefore ceases to fulfil its side of the obligations, the UK could decide it is not appropriate for the UK to provide one-sided entitlements to the EU27; it might not be legally necessary for the UK to stop upholding one side of the obligation, but it might not be appropriate for us to continue if the EU is not doing so.

[Yvette Cooper]

It is my understanding that the Minister is saying that courts that were told that Ministers had two options, both of which might be necessary solutions to a particular problem, would therefore say that neither passed the necessity test because Ministers had chosen between the two of them. That sounds utterly ludicrous as a way in which the courts would make a decision. Will the Minister elaborate by providing a case law example of a situation where the courts have been given such a necessity test and have decided to rip up all necessary options on the basis that there were too many necessary choices?

[Mr Baker]

I will see whether, before I sit down, my memory can be jogged on an example of case law, but I am only a humble aerospace and software engineer and I do not mind saying to the right hon. Lady that I have sometimes observed that we dance on the head of a pin over particular words. In order to protect the law and the public purse, I think the Law Officers would require me to take appropriate advice from lawyers on the nature of these words and to abide by it as we proceed through the legislation.

[Joanna Cherry]

Earlier in our debate, the right hon. Member for West Dorset (Sir Oliver Letwin) said that we all know what “appropriate” means and so would a court. Can the Minister tell us what “appropriate” means in this context?

[Mr Baker]

I think what we would say to the hon. and learned Lady is that “appropriate” will follow the plain English definition, which she will find in various places, but what I want to do is move on.

I want to set out why it is important that the test of appropriateness extends to the use of the power in clauses 8 and 17, to which the right hon. Member for Ross, Skye and Lochaber has tabled amendments 205, 207, 208 and 216. For example, leaving the EU, the customs union and the single market may alter the way in which the UK complies with its international legal obligations in relation to taxation, and there will not always be a clear single choice about how to comply with those obligations. Clause 8 will give Ministers the flexibility, as necessary, to make those changes. Using the word “necessary” would risk constraining the use of the power to the extent that where it is appropriate for the UK to adjust our domestic legislation to ensure compliance with international obligations but where there are multiple ways to do so, we might not be able to ensure compliance with our important obligations under international law, thereby undermining the core intention of clause 8.

[John Penrose]

rose—

[Mr Baker]

I shall be here for some hours if I take too many interventions, but I will give way to my hon. Friend.

17:30

[John Penrose]

I will endeavour not to try my hon. Friend’s patience too much; he is being very generous. I want to clarify one point. I think that his previous response on the difference between “necessary” and “appropriate” will have suggested to the plain non-lawyerly listener that he was accepting the principle that there should be no greater powers than are necessary to ensure that EU law is ported across correctly, and that the only argument he is making is that there might then be a legal interpretational problem when he has more than one choice. Will he at least confirm that he does not wish to bring in, for himself or for any other Ministers, powers that are higher than “necessary” as a basic principle, and that he will therefore try to find words that will give him that minimum level of—

[The Temporary Chair (Mr Gary Streeter)]

Order. This is a rather long intervention, and the Minister has made it clear that he does not wish to take too many more interventions as he is seeking to make progress.

[Mr Baker]

I am grateful to my hon. Friend the Member for Weston-super-Mare for putting his own clarification into my remarks.

The Government wish to take the minimum powers necessary—the minimum powers required—to do the job before us, which is to deliver a working statute book by exit day. We do not intend to make any major changes of policy beyond those that are appropriate to deliver a working statute book, where the law after exit day is substantially the same as the law before exit day, so that individuals and businesses can rely on it. The issue surrounding the definitions of “necessary” and “appropriate” is a technical and legal one, rather than a general issue of intent, and I stand by what we have said. We understand that “necessary” would be interpreted as logically essential and could land us with the problem that I have illustrated, with Ministers facing a number of choices about how to proceed. So if I may, I will leave that issue there.

The use of the word “equivalent” in new clause 24 is just as problematic. Returning to the example of a reciprocal arrangement that no longer exists, if we were —with the support of this House and entirely appropriately in line with our agreements with the EU—to end the obligations that were placed on the UK in law, this new clause could lead to a court taking the view that that would not be keeping the equivalent scope, purpose and effect of the law in relation to how the law stood before exit. This would undermine the Bill’s core objective of maintaining a functioning statute book once we leave the EU. I therefore urge right hon. and hon. Members not to press their proposed amendments, and the hon. Member for Brighton, Pavilion (Caroline Lucas) to withdraw her new clause.

I now want to address new clauses 1, 6 and 26, and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130, tabled by the Leader of the Opposition and others. These would all change the scrutiny process for secondary legislation made under the Bill. We have heard some fine speeches from distinguished parliamentarians, and it is clear that a great deal of thought has gone into the amendments and the arguments supporting them. First, let me be clear that we are committed to appropriate parliamentary scrutiny throughout the whole process of our withdrawal from the EU—Members will know that we make statements, Committee appearances and so on—and, as my right hon. Friend the Prime Minister has already made clear, Parliament will have a vote on the contents of the withdrawal agreement. Crucially, where we are seeking not to replicate current arrangements but to take substantially new approaches, there will be separate pieces of primary legislation for Parliament to work through, as we are beginning to see with the legislation that is being introduced.

However, we must be mindful of the large volume of statutory instruments necessary and the limited time available to work through them if we are to provide certainty and stability on exit. We are working to the timetable of the article 50 process, and there is over 40 years of EU law to consider and correct to ensure that our statute book functions properly on our exit from the EU. According to EUR-Lex—the EU’s legal database—more than 12,000 EU regulations and over 6,000 EU directives are currently in force across the EU. If the majority of statutory instruments do not complete the parliamentary process before we leave the EU, there will be significant gaps in domestic law, which could raise real problems with real consequences. Our law currently gives powers to EU regulators across a wide range of areas that affect people’s lives, from aviation safety to the environment, and we therefore have a duty to act.

New clauses 1 and 26 and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130 would all give a parliamentary committee or either House of Parliament the role of deciding the scrutiny procedure that each statutory instrument must follow. We are sympathetic to the intention behind the amendments, which is why we made our announcement in relation to the Procedure Committee’s recommendations. All that is in harmony with the existing arrangements for the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee in the House of Lords.

Amendments 34, 37 and 40, tabled by the Leader of the Opposition, would apply the affirmative procedure to a statutory instrument of sufficient policy interest, which is ambiguous and does not involve a practical, clear trigger for the affirmative procedure. Ultimately, it would end up being for the courts to decide what is “of sufficient policy interest”, creating legal uncertainty, which is contrary to the Bill’s central aim. I hope that Opposition Members will agree that that has been superseded by our commitment to the sifting committee.

Amendment 22, tabled by the hon. Member for Rhondda (Chris Bryant), would introduce a means for the Leader of the Opposition or a certain number of MPs to trigger an automatic debate on an SI made under the negative procedure. Again, I hope that the hon. Gentleman will accept that that has been superseded by the sifting committee.

I will now address several amendments relating to the important matter of environmental protection, on which this Government have a proud record. Amendments 96, 97, 98, 138, 333 and 334 and new clauses 27, 62 and 63 were tabled by the Leader of the Opposition and others. We agree with the intentions behind the amendments and new clauses and understand hon. Members’ concerns, but it is essential that the clause 7 power exists as drafted in the Bill. Its purpose is to make changes, often of a technical nature, to deal with deficiencies in retained EU law. While simple in nature, it is essential to ensuring that legislation that protects the environment and rights remains consistent and continues to function effectively once we leave the EU.

Turning to new clauses 27, 62 and 63, the UK has always had a strong legal framework for environmental protections, and that will continue. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs has recognised the risk of the governance gap, which has been explained, and that is why he announced on 12 November our intention to consult on a new independent and statutory body to advise and challenge the Government, and potentially other public bodies, on the environment, stepping in when needed to hold bodies to account and to enforce standards. We will consult on the specific scope and powers of the new body early next year. We understand the intention behind the new clauses, but they would create problems for our framework of environmental governance, about which we have made announcements.

New clause 27 would go further than the existing governance mechanisms for environmental protections set out in EU and UK law. For example, it would require the Government to give powers to this new independent body or bodies to set standards or targets and to co-ordinate action on the environment. Within the current EU mechanism, the exercise of those powers, such as legislating to set standards, would typically involve the Council of the European Union and the European Parliament; it does not normally rest solely with an independent body or bodies. Legislating for new standards and targets should be a matter for our Parliament in future.

New clause 62 would prejudge the consultation’s outcome and would necessarily limit the possible remit of a new body by requiring that it be established by regulations under clause 7. This power for functions currently exercised by EU institutions could be replicated by being given to UK bodies to exercise. Therefore, for example, significant domestic changes to the law post EU exit or new areas of the environment would fall outside its remit.

While we support the intention behind amendments 97, 98, 96, 138, 333, 334 and new clauses 62 and 63, they give no definition of what an environmental protection is or precisely how one might know that such protections were being weakened or narrowed. We believe that the hon. Members would be preparing the starting gun for a vast quantity of litigation so we cannot accept the amendments to clause 7, 8 or 9 or the new clauses.

Allow me to reiterate, Mr Streeter. Clause 7 powers are temporary powers limited in scope. Restricting the use of those powers further, as many of the amendments seek to do, would threaten rights and protections established in domestic and EU law, which we will be retaining. This is contrary to what I believe is the intention behind many of the amendments, so restricting the power as proposed would be counterproductive and we cannot accept the amendments.

Amendments 25, 26, 27, 52, 109, 111, 115, 266, 268, 267, 222, 363 to 373 and new clause 76, plus those amendments consequential on them, deal with the protection of rights in relation to the power in clause 7 or parallel restrictions in clauses 8 and 9. The UK has a long tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The decision to leave the EU does not change that. I reiterate the Government’s firm commitment to protecting rights throughout the EU exit process. As we have debated previously, the Bill ensures that, so far as possible, the laws we have immediately before exit day will continue to apply. As part of this approach, clause 4 will continue to make available any rights and so on which currently flow into domestic law through section 2(1) of the European Communities Act 1972 within the overall scheme of the Bill.

Moreover, the clause 7 power is already restricted so that it cannot amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it. The restrictions sought by amendments 25, 109, 363 and 364 are therefore not necessary. I am aware that amendments 365, 26, 366 and 367 would place the same restrictions on the powers in clause 8. The clause 8 power is already restricted so that it cannot amend, repeal or revoke the Human Rights 1998 or any subordinate legislation made under it. The restrictions sought by amendments 365 to 367 are therefore not necessary.

[Tom Brake]

The Government have rightly excluded the Human Rights Act. I just want to understand why the Equality Act 2010 has not also been excluded.

[Mr Baker]

I will come on to the Equality Act within a page.

Amendments 52, 266, 267, 268, 370, 371 and 372 have been tabled by the right hon. Members for Normanton, Pontefract and Castleford, for Ross, Skye and Lochaber and for Carshalton and Wallington (Tom Brake). They would prevent any changes to the Equality Act. As part of the Government’s clear commitment to maintaining equalities protections throughout the process of EU exit, we have tabled amendment 391, which will ensure that the amendments that will be made to equalities legislation under this and certain other powers in the Bill are transparent, and provide confirmation that the Minister has had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act.

Indeed, hon. Members may not be aware that the Government have already published a document on our website setting out the changes that we intend to make to the Equality Act, making it clear that they are limited to technical adjustments that are designed to ensure that the protections established in the Act continue to operate after exit.

Let me just run through them for the right hon. Gentleman. They include: references to the European Parliament; references to future EU obligations, including new EU obligations implemented under the European Communities Act 1972; references to EU law as a generic term and harmonisation measures; references to specific EU directives which are set out in the paper; and, finally, references to the UK as part of the European economic area. So I commend that paper to right hon. and hon. Members who are interested and/or concerned about it. With that in mind, as changes are necessary, as set out in the paper, I urge right hon. and hon. Members not to press their amendments.

17:45

Amendment 222, which seeks to conserve consumers’ rights and protections, also fails to supply a definition of what those might be or how this might be measured. It would open up the corrections, which will ensure crucial protections continue to operate, to an increased risk of litigation. However, let me reassure hon. Members that clause 7(1) is clear: 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”.

As I have said before, if an issue does not arise from our withdrawal from the EU, Ministers may not amend the law using the powers in clause 7.

I come to amendments 12 and 13, tabled by my right hon. and learned Friend the Member for Beaconsfield. Although the Government are sympathetic to his desire to ensure that certain conditions are met before clause 8 and 9 powers are used, we cannot support the amendments. The structure of the conditions set out by him introduce a number of tests into the Bill that we believe are not, at this point, adequately defined and are too subjective. They could therefore risk frustrating the Government’s ability to ensure our international obligations are complied with, create uncertainty about the law and provoke a significant body of litigation.

On amendment 13, the Government do not believe that a series of statutory restrictions placed on the power in clause 9 are necessary. Exercise of the clause 9 power will be subject to the usual public law principles designed to ensure that the Executive act reasonably, in good faith and for proper purposes.

Amending the power so that regulations made under it could not, for example, make provisions of constitutional significance or remove any necessary protection, would be vague and opaque. It would also generate considerable uncertainty and, potentially, unnecessary litigation, given the lack of definition and clarity as to what these terms mean in practice. Again, clause 9 needs to be both clear and flexible to enable us to implement the withdrawal agreement or those elements of it needed prior to exit day which it would not be possible to include in the withdrawal agreement and implementation Bill by virtue of the time available. I therefore urge my right hon. and learned Friend not to press his amendments to a vote.

[Mr Grieve]

I can understand the Minister’s point on timing, but the reality is that the terms of amendment 13 are ones with which the Government must be very familiar, as they appear in lots of other legislation. So I find this slightly difficult to follow.

[Mr Baker]

I am grateful to my right hon. and learned Friend for putting me right on that point, but I shall now have to press on rather than explore it. [Interruption.] I am not in a position to answer it, but I will see whether my memory can be jogged.

I turn to the issue of children’s rights, where I am grateful that I have the opportunity to discuss amendment 332 and new clause 53, which stands in the name of my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). I congratulate him on the powerful speech he made, reminding the House of its obligations. His new clause has received broad support across the House, including from my right hon. Friend the Member for Loughborough (Nicky Morgan), the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and the hon. Member for North Down (Lady Hermon), among others. This new clause and amendment 332, tabled by the hon. Member for Walthamstow (Stella Creasy), give me the opportunity to clarify our position on child refugee family reunion and asylum seekers.

The Government’s commitment to children’s rights and the United Nations convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU. Domestically, the rights and best interests of a child are already protected through the Children Act 1989 and the Adoption and Children Act 2002, in addition to other legislative measures across the UK. Existing laws and commitments already safeguard children’s rights.

The Government support the principle of family unity and we have in place a comprehensive framework so that families can be reunited safely. The Dublin regulation itself is not and has not been a family reunification route. It confers no right to remain in the UK on family grounds and there is no provision for children to apply for family reunification under it. Crucially, the Dublin regulation creates a two-way process that requires the co-operation of 31 other countries. We cannot declare that we are going to preserve its terms when we need the co-operation of other countries to make it work.

We understand our moral responsibility to those in need of international protection, and that will not change as we leave the European Union. We value co-operation with our European partners on asylum and we want that co-operation to continue, but the way to ensure that is through the negotiations, not by making changes to the Bill before we have been able to make progress on this matter. I am grateful to my hon. Friend the Member for East Worthing and Shoreham and those who support his new clause but, as he said, changes are required in immigration rules. I am grateful to him for his stating the probing nature of the new clause. I ask him to work with Ministers, whom I think he said he has now met, to deliver the right changes to the immigration rules.

[Tim Loughton]

I am grateful for the Minister’s clarification, and I do hope that we can make some progress in, say, an immigration Bill. Nevertheless, will he explain to me why it requires the co-operation and agreement of 31 other countries for the UK to be able to say that we will take genuine unaccompanied asylum-seeking children with relatives who are legitimately in this country but who happen not to be their parents?

[Mr Baker]

My hon. Friend makes his case with particular force. I am sorry to have to tell him that I am not in a position to accept his new clause on that basis. I ask him to work with members of the Government on the immigration Bill that will contain the measures that he and the rest of us wish to see to ensure that we meet our humanitarian obligations.

[Stella Creasy]

rose—

[Mr Baker]

I will give way to the hon. Lady once.

[Stella Creasy]

The Minister’s colleagues gave a statement on 1 November 2016 that made the commitment to take children from Europe, and it is those children whose rights under the Dublin regulation would be taken away. Can he understand the concern about the fact that he has just announced that the requirement to work with 31 other countries would supersede that? Will he give a cast-iron guarantee that the commitment made in that statement on 1 November 2016 to take children from Europe and to do our fair share for refugee children will be honoured in full?

[Mr Baker]

These are matters for my right hon. Friend the Home Secretary and the Bills for which her Department is responsible. I hope the hon. Lady will forgive me and understand that it is with the Home Office that these matters need to be taken forward. This Bill is about how we leave the European Union with certainty, continuity and control in our statute book.

Amendments 15 and 16 are on the power to deal with deficiency—

[Mr Kenneth Clarke]

rose—

[Mr Baker]

I just say to my right hon. and learned Friend that I am 51 minutes into my speech and I am only around halfway through it. I would prefer to press forwards.

[Mr Clarke]

I understand my hon. Friend’s difficulties. He is responding to new clauses and amendments on an amazingly wide range of topics that keep going into other departmental areas, but it is quite useless if the winding-up speech consists of the Minister saying in a series of statements that he is in no position to answer the questions. If there is an important Home Office question, as there is with the issue of child refugees, it would be normal for a Home Office Minister to be in attendance and to rise in some suitable way to answer the debate. My hon. Friend is reading very competently his carefully prepared brief, which concludes at every stage by saying, “I hope that the amendment will be withdrawn.”

[Mr Baker]

I am grateful for my right hon. and learned Friend’s intervention, which has disappointed me neither in the sympathy that he expressed for my predicament nor in the sting in its tail. The Bill is the responsibility of the Department for Exiting the European Union, with the collaboration of other Ministers who are assisting in its passage. He is absolutely right that it covers a wide range of issues. I believe that I have given an answer on the particular point raised.

On two points of technical legal detail, I have asked for my memory to be jogged in the course of the debate, and I very much hope that I will be able to give an answer before I sit down. My right hon. and learned Friend will understand that I am not, like him, a learned Member of this House; I am a humble aerospace and software engineer. It is necessary for me to go through the clauses of the Bill that relate to parliamentary scrutiny and do not require technical legal expertise.

[Wera Hobhouse (Bath) (LD)]

rose—

[Mr Baker]

I will not give way, because I need to make progress and to keep my remarks to some form of limit.

Amendments 15 and 16, tabled by my right hon. and learned Friend the Member for Beaconsfield, seek to narrow the categories of deficiencies arising from our withdrawal from the EU. The removal of clause 7(8), as amendment 16 proposes, would restrict our ability to keep the law functioning as it does now. Subsection (8) is about deficiencies arising not only from withdrawal, but from how the Bill works. For example, the Bill does not preserve directives themselves, as we have already debated, but instead preserves the UK law, which implements them. In some instances, there are provisions in directives, giving powers or placing restrictions on Government or on EU institutions or agencies, which it would not have made sense to transpose in UK law, but which then need to be incorporated in order for the law to continue to function as it did before exit. For example, the Commission currently holds a power to restrict the disclosure of confidential information in the financial services sector, which is referenced by UK implementation of the capital requirements directive 2013, but which will need to be transferred to the UK. We might also want to transfer powers that the Commission currently has to define what counts as hazardous waste, which is currently in the waste framework directive.

Subsection (8) allows the clause 7 power to correct deficiencies that arise from that withdrawal together with the operation of the Bill. For example, it might be appropriate to lift a relevant part of a directive and insert it into UK law in order to keep the law functioning as close as possible to how it does presently.

[Mr Grieve]

If I may say to the Minister, he has actually provided a totally coherent and helpful answer, which dealt with a probing amendment that I tabled. I am most grateful to him for it.

[Mr Baker]

Well, I am extremely grateful to my right hon. and learned Friend, who I am very happy to see does remain my friend, as well as my constituency neighbour. I cannot tell him how happy I am to discover that that is the case.

Earlier, my right hon. and learned Friend asked me why Government could not accept additional protections requirements in amendment 13, given that that appears in other legislation. A similar test does appear in the Legislative and Regulatory Reform Act 2006, but the powers in that Act are rarely used, in part because of its complicated requirements. Moreover, the detail of that Act and its powers justify such a test as it is about deregulation. We consider that the existing restrictions in clause 9 are the right ones.

I move forward to amendments 131, 269 to 271, and 359 on restriction of the powers relating to EU citizens’ rights. Since those amendments were tabled, we have secured much-needed agreement on citizens’ rights through our negotiations. I hope Members will be glad that we have now made sufficient progress, subject to the European Council meeting, and that we will be able to move forwards.

The final agreement with the European Union on citizens’ rights is still subject to our negotiations with the EU. However, of course, we expect to give effect to those in the withdrawal agreement and implementation Bill. The House will therefore have both a meaningful vote on the agreement and on its debates on the primary legislation necessary to implement it. I therefore invite hon. Members to withdraw their amendments.

[Robert Neill (Bromley and Chislehurst) (Con)]

On amendment 359, we seek clarity on the current wording in relation to deficiency by means of a loss of reciprocity. We want to clarify that the Government do not intend to use it in a broad sense—in theory, it could be used in a very wide sense. In fact, it is intended to be narrow, so that major changes to policy, such as citizens’ rights to work or to come to this country, will be effected by primary regulation, not by regulation under clause 7.

[Mr Baker]

I understand my hon. Friend’s point. Just to reassure him: it is our firm intention to carry through the agreement, which he can read in the joint report of the negotiators, into legislation so that citizens can rely on it in the United Kingdom through that withdrawal agreement and implementation Bill, which I hope we can put before the House in due course.

Amendments 31, 32 and 57 seek to remove so-called Henry VIII powers. I can confirm that amendment 32 is not necessary because the power in clause 7 cannot be used to amend the Act itself. It would be outside the scope of the power—ultra vires. Neither can the power in clause 8 be used for this purpose. Let me be clear: only the power in clause 9 states that it can amend the Bill. None of the other powers in the Bill make that statement. As I said earlier in an intervention, in the event that the use of a clause 9 power is proposed to amend the Act, it would be subject to the affirmative procedure.

18:00

Amendments 57 and 110, meanwhile, would unnecessarily and seriously limit our ability to make corrections. Whether the deficiency is in primary or secondary legislation, it is not a meaningful indication of the type of change that needs to be made or the significance of the change. To be ready for exit day, a large number of fairly straightforward changes will need to be made to primary legislation in exactly the same way as they might be made to secondary legislation. For example, section 21(1) of the Public Passenger Vehicles Act 1981 makes reference to “in another member State”. Section 21(3)(b) says,

“of the other member State”,

and paragraph 7(c) of schedule 3 says, “by another member State”. The power therefore needs to be broad enough to allow for corrections to be made to both primary and secondary legislation. We are more concerned with the category of changes that must be made than where they are required. Textual and technical changes must be made in primary legislation if we are to have a functioning statute book on exit day. That is why we are allowing this secondary legislation to amend primary legislation.

The Bill, like almost all others, contains a long list of definitions that could conceivably require updating in the future. To do so pursuant to some future Act by a statutory instrument would be to exercise a so-called Henry VIII power. However, let us consider a hypothetical scenario. A statutory instrument made under the Health and Safety at Work etc. Act 1974 will contain key elements of the UK’s occupational safety regime in secondary legislation. That could be amended by statutory instrument. Now, we do not propose to do such a thing. I am just trying to indicate that although that would be a case of amending secondary legislation through secondary legislation—not a Henry VIII power—it would have profoundly important effects. The point I am making is that, although the argument about Henry VIII powers is rhetorically powerful, we are most concerned about the category of change that needs to be made and not, first and foremost, where it needs to be made. I am pleased that we have been able to accept the sifting committee amendments and bring forward the commitments to the information in the explanatory memorandum so that the Committee can be comfortable with the powers that we are using. It is the Government’s position that it is the substance of the change that matters.

Amendments 5, 61, 88, 104, 108, 121, 342 and new clause 37 would all impose some restriction on the clause 7 power concerning public bodies. If we want to provide certainty for citizens and business, it is important that we are able to ensure that all important functions currently carried out at an EU level can be carried out at a UK level in time for exit day. Amendments 121 and 108 would hamper this by preventing the power from being used to create new public bodies. We envisage using the power in this way only very rarely because an existing UK body should be able to take on the function in most instances. In addition, any use of the power to create new bodies would be subject to the affirmative procedure, so both Houses would need to approve the Government’s proposal. The provisions sought by amendment 104 to make any new public bodies temporary would simply defer uncertainty for later and cause unnecessary disruption.

The Government agree that we should ensure that no important functions are lost as we leave the EU, as amendments 5, 61 and 342 and new clause 37 seek to do. However, that is precisely why we need the clause 7 power. There might be a small number of functions that do not make any sense outside the EU—for example, the functions of the Translation Centre for the Bodies of the European Union, or the authority of the European political parties and European political foundations. Those functions could be removed only if, outside the EU, they were somehow deficient, and not simply because, as a matter of policy, Government disliked them. The power could not be used to remove functions relating to rights and protections—the concerns of amendment 342 and new clause 37—unless they somehow became deficient outside the EU, and removing functions entirely was an appropriate response. All of that would, of course, be laid out in the accompanying explanatory memorandum.

The normal requirements in relation to producing impact assessments will apply, as appropriate, where we replace, abolish and modify functions, as sought by amendment 88. In addition, we have already committed to producing an explanatory memorandum with each instrument. I hope I have satisfied the concerns of right hon. and hon. Members in regard to those amendments.

Let me move on to the power to sub-delegate legislative functions. I thank my right hon. and learned Friend the Member for Beaconsfield, and I should pay tribute to him at this point, because it is appropriate to say that his contribution to this Bill will long be remembered in history for its substance and quality and for keeping me on my feet on matters I had never dared to think I would trespass on.

As I have already stated during the debate, ensuring that all important functions currently carried out at EU level can be carried out in an appropriate way in the UK in time for exit day is a vital part of providing certainty for businesses and individuals. We recognise that the transfer of legislative functions to public authorities and the creation of new such powers may concern many Members. Again, it is not something that anyone should take lightly. However, conferring powers on public authorities to make legislation is not a novel approach in the UK. While my right hon. and learned Friend has used the courts and tribunals as one example of where this currently happens, there are other important areas where it already happens, and where it will be necessary to transfer EU legislative functions to UK bodies.

Conferring powers on public authorities to allow them to make provisions of a legislative character or other legislation can be an appropriate course of action, particularly where there is a need for specialised, technical rules to be developed, introduced and maintained by a body that has the necessary dedicated resource and expertise. There are good examples of where Parliament has already provided for this approach in the UK. Our financial regulators, the Prudential Regulation Authority and the Financial Conduct Authority, have been given the responsibility by Parliament of developing and making the detailed rules needed to ensure that financial services firms are stable and well managed and meet the needs of consumers. Of course, those regulators can exercise their rule-making powers only according to the policy set by Parliament.

[Mr Grieve]

My hon. Friend touches on an important issue. Might it not be the case that any such power done by regulation ought to be done by affirmative resolution? I just suggest that that might be the solution to dealing with tertiary powers, because of their unusual nature. In view of the list he has given us, it seems to me that, in all likelihood, these things would be done by affirmative resolution, but that is something the Government might like to consider between now and Report.

[Mr Baker]

I just draw my right hon. and learned Friend’s attention to paragraph 1(2)(c) of part 1 of schedule 7, which would require that the affirmative procedure be used if a provision

“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”.

So instruments of a legislative character coming across would trigger the affirmative.

[Mr Grieve]

I take it, therefore, that that covers all the points my hon. Friend has just raised at the Dispatch Box.

[Mr Baker]

There are also some matters in relation to fees and charges, which we discussed earlier in the debate. What I would say to my right hon. and learned Friend is that, where he has doubts, we have agreed to the sifting committee, and if he is concerned, I hope he will consider membership of that committee so that he can play his part in seeing through this set of measures.

[Mr Charles Walker]

May I apologise, as Chair of the Procedure Committee, for arriving late to my hon. Friend’s speech? I thought I had missed all of his speech, then I realised I had missed half of it, but it now seems that I have only missed a third of it. However, I do apologise for arriving late, and I hope he accepts that apology at face value.

[Mr Baker]

I am extremely grateful to my hon. Friend.

Let me return to my notes in order that I might give the Committee an accurate presentation of these measures. Where this type of specialist legislative function exists at EU level, we will need to ensure that the responsibility is transferred to the appropriate UK body so that the UK has a fully functioning regulatory regime in time for day one of EU exit. This might be the case where, for example, it is more appropriate for the Health and Safety Executive in the UK to update lists of regulated chemicals than the Secretary of State, or where it would make sense for the Prudential Regulation Authority to take on responsibility for updating monthly the detailed methodology that insurance firms must use to prudently assess their liabilities. Both these legislative functions are currently carried out at EU level and will need to be taken on by the appropriate UK regulator after exit.

To reply to the point made by my right hon. and learned Friend the Member for Beaconsfield, any SIs made under clause 7 that transfer a legislative function or create or amend any power to legislate will be subject to the affirmative procedure. This is provided for in schedule 7. Therefore, Parliament will be able to debate any transfer of powers and consider the proposed scope of such powers and the scrutiny proposed for their future exercise, which will be set out in any instrument conveying that power. Recognising that some of the existing EU regulation that will be incorporated into UK law will be of a specialised and technical nature, clause 7 allows the power to fix deficiencies to be sub-delegated to the UK body that is best placed to perform the task. EU binding technical standards—the detailed technical rules developed by EU regulators for financial services—are a good example of where we might sub-delegate the clause 7 power. These standards, which run to almost 10,000 pages, do not make policy choices but fill out the detail of how firms need to comply with requirements set in higher legislation. The PRA and the FCA have played a leading role in the EU to develop these standards, and so they already have the necessary resource and expertise to review and correct these standards so that they operate effectively in the UK from day one of exit. I appreciate the concerns of my right hon. and learned Friend and the hon. Member for Nottingham East, but I hope I have demonstrated why we cannot accept these amendments.

Amendments 17, 360 and new clause 35 require additional information. As I have said, we have tabled amendment 391, which will require the explanatory memorandums alongside each statutory instrument to include a number of specific statements aimed at ensuring the transparency of the SIs that are to come and acting as an aid to the most effective scrutiny that this House can provide.

I would like to take a particularly special moment to reassure my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), in whose name amendment 360 is tabled, that we have laid in the Library draft SIs that will help everyone to understand the sorts of changes that we might need to make under clause 7. I would like to reassure him that the Treasury has been engaging with the financial services industry extensively since the EU referendum on the range of issues affecting the sector as we withdraw from the EU. That engagement continues and it includes regular official and ministerial discussion with industry and trade associations and bodies such as the International Regulatory and Strategy Group. That includes discussions on our approach to the domestication of EU financial services regulation through this Bill. That will continue and grow throughout 2018. The Treasury is also working closely with the Bank of England and the FCA to ensure the UK’s smooth and orderly withdrawal from the European Union.

By supporting a close working partnership between industry, regulators and Government, the Government will ensure that their approach to domesticating EU financial services regulation is well understood and based on input from stakeholders. Consistent with the objectives of this Bill, the approach in financial services is to provide certainty and continuity for firms after exit with the UK maintaining high regulatory standards. Financial services is one of the areas where a bold and ambitious free trade agreement could be sought. We are ambitious for that deal and we would do nothing in clause 7 to undermine it.

[Robert Neill]

I am grateful to the Minister for devoting that portion of his speech to the detail on financial services. That is important for the City, as he knows, and the proposal to publish draft statutory instruments is a well-tested and welcome route.

[Mr Baker]

I thank my hon. Friend.

18:15

[Vicky Ford]

I have a quick question about financial services legislation and deficiencies. I want to get it clear in my head, as a non-lawyer, that deficiencies would not cover material policy changes. For example, European banks, including British banks, currently do not have to hold any capital against sovereign debt issued by EU member states. Changing that could be considered to be dealing with a deficiency, because we will no longer be a member state, but it would be a policy change. Will the Minister confirm that that sort of amendment would be picked up and would go through the affirmative procedure?

[Mr Baker]

The first point to make relates to my hon. Friend’s last point. We have agreed to the sifting committee, which will be able to recommend—

[Peter Dowd (Bootle) (Lab)]

It will be very busy.

[Mr Baker]

The committee will be busy, and that is why I am so grateful for the fact that several hon. Members—presumably including the hon. Gentleman—seem to be volunteering to do the important duty of serving on it, which no one should take lightly. I say to my hon. Friend that we have been extremely clear that any major change will come through primary legislation, but I cannot say that there will be no policy changes at all, however minor. The reality is that if a function comes back to the UK and we have to make a choice about whether it is allocated to the PRA or the FCA, that could be described as a policy choice.

I want to be clear with the Committee. I cannot say that there will be no policy changes whatever, but I can say that the Bill is about certainty, continuity and control. It is about making sure that the law works the day after we exit in substantially the same way as it worked the day before, from the point of view of those who are subjected to it. I can see that my hon. Friend brings great insight to the matter.

[Matthew Pennycook]

On a related point about the new sifting committee, will the Minister outline the Government’s view—this is partly a matter for Standing Orders—on how the chair of that committee would be appointed and whether Parliament could have a role in the election of the chair, rather than the post being appointed by the Government?

[Mr Baker]

The hon. Gentleman has been generous enough to say that he appreciates that that is a matter for Standing Orders. I am very sensitive to the role and powers of Parliament, which we have discussed throughout proceedings on the Bill. As a Minister, I really do not want to stand at the Dispatch Box and trespass—in this debate, of all places—on Parliament’s right to set its own Standing Orders.

[Mr Charles Walker]

We based the model on the European Scrutiny Committee, in which the Chairman is appointed.

[Mr Baker]

I am grateful to my hon. Friend.

I move on to consent from the devolved Administrations. Amendments 73, 233, 239 and 240 were tabled by the right hon. Member for Ross, Skye and Lochaber and the hon. Members for Airdrie and Shotts (Neil Gray) and for North East Fife (Stephen Gethins). Taking the right hon. Gentleman’s amendments together, we are committed to continuing to respect the devolution settlement fully. We will work closely with the devolved Administrations as we develop fisheries and agricultural legislation, which will be brought through by separate Bills to deliver an approach that works for the whole United Kingdom.

At this point, I hope that the Committee will not mind if I refer to points raised in our previous debate on devolution. Amendments were tabled about a restriction on the power relating to national security. As my right hon. Friend the Prime Minister has said, we are proposing a bold new strategic agreement that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation—a treaty between the UK and the EU—that would complement our existing extensive and mature bilateral relationships with our European friends to promote our common security. That is just one outworking of the Government’s commitment to national security.

I now turn—I think, finally—to amendment 385 and new clause 77. Amendment 385, tabled by the hon. Member for Birmingham, Yardley (Jess Phillips), seeks to replicate the protections in part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014 in relation to protected persons. As I understand it, the amendment seeks to provide that the relevant authorities in England and Wales would continue to recognise and act on the orders made under the EU directive by the remaining member states, whether or not they act on ours.

I congratulate the hon. Lady on her powerful speech, but we cannot accept the amendment at this time because our continued co-operation with other EU member states’ courts is a matter to be negotiated. The outcome of the negotiations is not yet certain, and it would therefore be premature to seek to replicate in our law one side of a reciprocal arrangement that may not continue. However, I am happy to make it clear that if the forthcoming negotiations produce an agreement to continue access to the regime established under the directive, or something like it, appropriate steps in legislation will be brought forward to implement it at that time. I therefore urge her not to press her amendment.

[Jess Phillips]

I hear what the Minister is saying and I take on board that this has to go through the new negotiations. What I am trying to do with the amendment is to ask Ministers to remember that this needs to go through the negotiations, because it was completely missing from the White Paper on the earlier negotiations.

[Mr Baker]

The hon. Lady’s point is well made and has been heard by me and my right hon. and hon. Friends, and I am grateful to her for making it.

The hon. Lady also tabled new clause 77. It may assist the Committee if I explain that the Government are taking forward a range of work to tackle violence against women and girls and that we are already required to lay annual reports before Parliament on the issue in the context of the Council of Europe convention on preventing and combating violence against women and domestic violence—the Istanbul convention.

The coalition signed the Istanbul convention in 2012 to demonstrate its strong commitment to tackling violence against women and girls, and this Government have made absolutely clear our commitment to ratifying it. The convention seeks to continue promoting international co-operation on this issue. Indeed, it is the first pan-European legally binding instrument that provides a comprehensive set of standards to prevent and combat violence against women.

The hon. Lady will know that we have engaged and will continue to engage with a range of international partners, including the EU, in our efforts to tackle this issue. For example, we recently participated in work with the Council of Europe—as Members will know, it includes both EU and non-EU member states—to develop a best practice guide on stopping forced marriage and female genital mutilation.

I know the hon. Lady desires ensuring that Parliament is updated on this issue. As she will be aware, on 1 November we laid the first report on progress towards ratification of the convention, as required by the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017. The report, which we are required to lay annually, sets out the action we are taking to tackle violence against women and girls and how we comply with the measures set out in the convention. In addition, once the UK has ratified it, we will be required to submit regular reports on compliance to the Council of Europe. As right hon. and hon. Members will appreciate, we want to avoid duplicating our existing reporting requirements in this area.

We are committed to doing all we can to address violence against women and girls both domestically and internationally. As the hon. Lady will be aware, our cross-Government strategy outlines our ambition that no victim of abuse is turned away from the support they need. It is underpinned by increased funding of £100 million, and a national statement of expectations sets out a clear blueprint for good local commissioning and service provision. I hope that I have reassured the hon. Lady that the Government have been, and will continue to be, committed to tackling violence against women and girls and to updating the House on our work in this area and that she will therefore not press her new clause.

[Tom Brake]

Will the Minister give way?

[Mr Baker]

Before I conclude my opening remarks, I will give way to the right hon. Gentleman.

[Tom Brake]

It is possible that I switched off, or perhaps nodded off, during the past hour and 20 minutes, but I do not think I heard the Minister refer to my amendment 124 on the single market, which I assume means that the Government are supporting me.

[Mr Baker]

The right hon. Gentleman enjoys a jest, but I hope that the Committee will understand that, as I set out at the beginning of my speech—I have now been on my feet for an hour and 20 minutes, compared with an indication that I would take an hour, so I needed to pare down my remarks—it is not the Government’s policy, as he knows, to remain in the single market and the customs union.

In the interests of allowing other hon. Members to contribute to the debate, I will conclude my remarks. We face an unprecedented legislative challenge, to which the power in clause 7 is the only practical solution. The power is only a temporary solution to achieving our key objective: a functioning statute book in time for exit day. The Government believe that we have made significant concessions on the issue, both with the sifting committee and by putting into statute the requirement to include certain information in the explanatory memorandums. I hope that those concessions have tackled the concerns expressed throughout our consideration of these amendments. I am conscious of the commitment I gave to my right hon. and learned Friend the Member for Beaconsfield in relation to the scope of the powers, and I look forward to working with him. I will finish by thanking my hon. Friend the Member for Broxbourne for all that he has done, with the unanimous support of the Procedure Committee, to ensure that the House has the proposal for a sifting committee.

[Helen Goodman]

It is a great pleasure to follow the Minister, who presented a rather unbending policy posture this afternoon, but with his usual great good humour. On Second Reading I spoke mainly about the problem of the Henry VIII powers and the excessive use of delegated legislation in the Bill, and I feel justified, given the criticism outside the House that this was a power grab by Ministers.

When looking at clause 7, there are two big issues that we need to address: the scope and content of the delegated legislation, and the institutional architecture. I was therefore pleased to be a member of the Procedure Committee when it agreed to a report that acknowledged the problem and said that the House has a unique and unprecedented requirement and that we need special mechanisms to suit the task ahead. When I first told the hon. Member for Broxbourne (Mr Walker) last January that we should be looking into the Henry VIII powers, I think he was rather underwhelmed, but I think that now, on reflection, he is pleased that we did so. Only he could have secured a consensus between, for example, the hon. Members for Chichester (Gillian Keegan) and for Wellingborough (Mr Bone), the Scottish National party and me, which is a great credit to him. Our report sought a committee of the House to oversee all the delegated legislation.

I am happy to support amendments 393, 395, 396 and 397, which will put in the Bill the requirement for a sifting committee. I am even more pleased that the Government have accepted those amendments—the first changes they have accepted since publishing the proposals last summer. They will give the House a key role in overseeing the delegated legislation. As the Minister said, it is extremely important that Ministers will be required to produce explanatory memorandums. Without those, the committee would have a next to impossible task.

I think that the approach whereby the committee will give advice to Ministers so that statutory instruments can be upgraded from the negative to the affirmative resolution procedure is absolutely essential, because it means that the committee will be able to say that on some issues there must be a debate and a vote of the whole House, or that Ministers must provide an adequate explanation. I also think that the timetable that we have set out, of 10 days, is reasonable. However, I have some doubts about amendments 394 and 398, which would allow Ministers to step outside the process when they believe that the matter under consideration is urgent, because, as we all know, that could be abused by being stretched in a way that undermines the process.

I know that hon. Members, particularly those on the Opposition Benches, are somewhat doubtful about the efficacy of the amendments, but I pray in aid the Hansard Society’s assessment—I think it is the most neutral and impartial assessment one could look for—which agrees that the procedure has been strengthened. There is now a requirement to lay accompanying documents. The House will have more power, and the committee will be able to refer statutory instruments to further debate and upgrade the level of scrutiny.

I regret that the amendments do not reflect fully the report that the Procedure Committee published in November, which said that there should be a scrutiny reserve. That is what the European Scrutiny Committee has and I think that that would be better. It would also be better if Ministers followed the Committee’s recommendation to publish now a full list of the delegated legislation they expect to bring forward.

The amendments tabled by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook), who is on the Opposition Front Bench, would strengthen the process significantly by ensuring that Parliament was able to decide rather than just be consulted. He referred to the terrible saga of tuition fees, where the House was ignored by the Government. That is not reassuring and Ministers must know that. Indeed, one wonders at Ministers who did that knowing that this proposed legislation would be brought forward with a great package of statutory instruments under the negative procedure. That seems to be an extraordinary bit of behaviour. My hon. Friend also tabled amendments that would enable raising the scrutiny level to super-affirmative. Perhaps Ministers should still consider that.

Hon. Members interested in the sifting committee’s terms of reference, make-up and membership will have another opportunity to debate them when the Standing Orders come forward. The Leader of the House put forward some Standing Orders, but they are amendable. If hon. Members wish to change them, it is open for them to do so. I remind all hon. Members on both sides of the House that House business is not whipped business, so they do not need to fear—[Interruption.] I can see one Minister looking at me quizzically. House business is not whipped business, so Members can take a view in line with their conscience on what they think would make for the strongest sifting committee.

On the scope of clause 7 and the content and substance of the statutory instruments, Ministers are being very inflexible and I do not think that that will serve them well. My constituents have contacted me—I am sure other hon. Members have been contacted—with their concerns about environmental policy and animal sentience. I know Ministers have another route for dealing with the animal sentience issue. We also have very strong concerns about children’s rights. In September, we had a very good seminar on children’s rights led by Liverpool University’s law department, which brought together people with concerns about this issue from all parts of the United Kingdom, including Scotland and Northern Ireland. I really feel that the Minister’s response on new clause 53 and the position of child refugees is very disappointing, as is what he said about the UN convention on the rights of the child, which is covered by amendments 149 and 150. Now, that has not been debated today, but we will be voting on it later.

I want to point out to the Minister that he cannot rely on the Children Act 1989, which contains provisions on the best interests of the child, in the way he seems to think he can, because it applies only in certain classes of case referring to children. For example, it does not apply to housing decisions. It is simply not the case that the child’s best interest always has priority in English law, and if we wanted to do something about that we would incorporate the UN convention on the rights of the child into English law, as we did with the European convention on human rights and the Human Rights Act in 1998.

The Minister was very forthcoming in his debate with the right hon. and learned Member for Beaconsfield (Mr Grieve) on the question of looking again at the definition of deficiencies and the list of examples in the Bill. However, many hon. Members will have been extremely disappointed by his inflexibility and failure to shift on the question of whether the negative resolution process can be used where the Minister thinks it is appropriate and not necessary. This was covered by my hon. Friend the Member for Nottingham East (Mr Leslie) in amendment 68 and my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) in amendment 49. I have to say to the Minister that I do not think that he convinced many Opposition Members on that.

Similarly, on tertiary legislation, it is incredible to argue that the financial regulators are not making policy choices. They are. It may well be that they are in a better position given the length, complexity and technical nature of such matters to be the people responsible for those regulations. It may well be that they are in a better position to do that than Members of this House, but I do not think the Minister should claim that policy choices are not being made here, because they clearly are being made all the time.

[Mr Baker]

I will have to check the record—I was just flicking through my speaking notes—but I am sure that when I said that there were no policy decisions, that was about a 10,000 page document about how institutions were to comply with regulations. On the particular point about tertiary legislation and the financial regulation system, I feel sure that when the hon. Lady and I served together on the Treasury Committee she would have been as indefatigable a defender of the independence of the Bank of England as I would have been. Surely she does not want to undermine that.

[Helen Goodman]

I do not wish to undermine that. I just want the Minister to present what I believe to be a more accurate picture to the House about the content of tertiary legislation. That is the point that I am making.

It simply comes down to the fact that clause 7 gives Ministers too much scope. That brings into doubt whether the stated intention of the Bill, which is, simply, to translate the body of European law on to the UK statute book, is all that can happen once the Bill is passed. That is the problem with it.

The thing that will probably most concern our constituents is the proposal to abolish the functions of the EU agencies. That is extremely worrying and we do not get clear answers from Ministers on individual cases. My hon. Friend the Member for Wakefield (Mary Creagh) spoke about this in relation to the European Environment Agency and the European Chemicals Agency. The Minister will have seen, as I did yesterday, on the front page of the Financial Times the pressure from the chemicals and pharmaceuticals industries over chemicals and medicines safety regulations. When we ask Ministers in other Departments what will happen, we do not get any certainty. This is not at all reassuring. There are big risks for the economy if we do not handle this much better than the Government are handling it now. The issue of the regulations of the agencies is the thing that can have the most significant impact on the economy. Whatever else people voted for when they voted to leave the EU, they certainly did not vote to lose jobs and be poorer.

[Mr Charles Walker]

rose—

[Helen Goodman]

But before I sit down, I give way to the hon. Gentleman.

[Mr Walker]

I thank the right hon. Lady—I mean the hon. Lady—for her kind words. Why she is not right honourable escapes me! Perhaps that will be remedied soon. One of the important things to remember about the sifting committee, as she reminded me yesterday, is that if, as I suspect, there will be eight Government members and eight Opposition members, the chair, who will be appointed, will only cast a vote in the event of a tie. That is the very effective check and balance built into the committee. Yes, it might be—will be—a Government chair, but if all eight Opposition members vote and the seven non-chair Government members vote, the chair will not come into play. He or she will only come into play in the event of a tied vote.

[Helen Goodman]

The hon. Gentleman is displaying his usual charm in trying to make hon. Members feel that the Standing Orders put forward by the Leader of the House are peerless. I suspect that hon. Members will want to come back and debate the make-up and terms of reference at the time. I would also be grateful if Ministers could relay to the Leader of the House that we are disappointed that neither she nor her deputy have been present at any point in this debate, when we have been discussing something that concerns the role of the House. We hope very much that they will also be flexible if, when we have that debate, there is a consensus for changing the draft Standing Orders just published.

[Robert Neill]

It is a pleasure to follow the hon. Member for Bishop Auckland (Helen Goodman) and to participate in this debate. This, of course, is what Parliament is about at the end of the day. The amendments, including the two that stand in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), which have been debated at length, are all about improving the Bill. I noticed in the world of Twitter and spin merchants this afternoon the suggestion that amendments to the Bill on key issues, if carried, might somehow weaken the Government’s position with our European counterparts and undermine the confidence of our European partners in our ability to deliver. Shall we just park that as the tosh and nonsense that it is? Anyone who spins that out, on whoever’s behalf, should be ashamed of themselves.

I know that the two Ministers certainly would not take that view. The spirit in which they have approached the debate is welcome. This is about improving the Bill to ensure the right outcomes at the end of the day. That is why the points made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) were so important and why I endorse every word he said. It is also why I warmly welcome the work of the Procedure Committee and my hon. Friend the Member for Broxbourne (Mr Walker) in finding a means to a better level of triaging, in effect, of these very significant statutory instruments and regulations.

The point has been well made by both my right hon. and learned Friend and my hon. Friend that the broader picture here is how we scrutinise secondary legislation in this place. I think that everybody concedes that it is woefully inadequate and does not bear comparison with many other Parliaments. It is an example of how being the mother of Parliaments does not necessarily mean we are the best. We need to improve our work, but I think we are taking a workmanlike and sensible approach, which I appreciate. There will, no doubt, come a point when we shall need to look at the way in which we deliver the deal—and I am delighted that we are now able to move on to phase 2. I look forward to the time when the House is given a proper vote on that, or, indeed, on the lack of any such deal.

18:45

Ultimately, “taking back control” means the parliamentary institutions taking back control. It means the House of Commons taking back control. It does not mean giving control back to Ministers or civil servants, or, indeed, to plebiscites, which exist only as creatures of statute passed by the House. As the Minister said, giving the House real powers enabling it to have a proper oversight of both the outworking of the deal and the changes that we will have to make to have a proper, functioning statute book will be all the more important at the end of the day, when we leave the European Union.

The Minister kindly anticipated what I was going to say about the two amendments that I tabled, so I can deal with them comparatively briefly. They are both probing amendments. I tabled amendment 359 because I was concerned about the interpretation of clause 7(2)(c) in respect of deficiencies. The Minister has largely dealt with the point that I was concerned about, which was that, on one view, the wording could have captured fundamental aspects of EU law. For instance, the right of an EU national to work in the UK, or the right of a business established on the continent freely to sell goods and services here, is in a sense reciprocal to the ability of UK nationals or businesses to do the same in other EU states. Changes in that arrangement would constitute major policy changes. I accept the Minister’s assurance that that is not the intention of clause 7 and would not be the intention of regulations made under it. He will understand, however, that the issue is important because the pre-eminence of London as an international financial centre is partly due to the ability of firms to post staff swiftly to the UK from within the EU and elsewhere in the world. Any new regime must facilitate that, and we do not want any regulations to change the position, but I accept the Minister’s helpful assurances.

As for what the Minister said about amendment 360, I could almost have written his speech. I am very grateful to him and also to my hon. and learned Friend the Solicitor General, who has been most constructive in engaging with organisations such as the Financial Markets Law Committee. As the Minister will appreciate, a huge volume of EU-based regulation must be dealt with not only by financial businesses but by the lawyers who advise them. It is a burden on the Government lawyers who do the drafting, but it is also a burden on those advisers. What the Minister said about the earliest possible involvement and consultation was very welcome, and I appreciate the fact that that will be ongoing. I was particularly pleased to hear of the intention to publish draft statutory instruments, because that is a well-trodden and very valuable route.

The Financial Markets Law Committee and the International Regulatory Strategy Group bring together some of the greatest expertise that can be found in this sphere. The committee is chaired by Lord Thomas of Cwmgiedd, the former Lord Chief Justice, while the strategy group contains eminent practitioners from a range of relevant disciplines, who have day-to-day knowledge of how these things work. That is indicative of the critical mass that London has as a financial services centre. I am sure that the Government can only benefit from ongoing engagement with those organisations.

I have been able to shorten my remarks a good deal, much to the relief, no doubt, of many. I welcome the Minister’s reassurances on those two points, but I ask him to stick to the principle that this is all about scrutiny and taking back control here. That, indeed, is the job that we are doing now in scrutinising the Bill.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

I want to speak briefly in favour of amendments 15 and 49, 132, and 5 and 2, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and the Leader of the Opposition.

I know that many Members in all parts of the House have spent hours battling away on the Bill over the past few weeks, and I am full of admiration for them. I do not remotely pretend that I could compete with their expert knowledge of Europe or the constitution, and I will certainly spend as many hours as I can find poring over the Minister’s brief after tonight’s performance to see whether I can improve my understanding. Despite all this effort, however, all we have really seen are a few nudges and hints from Ministers to date; there has been no real tangible progress in terms of any substantial change to this Bill. That is the most worrying thing about the whole process. It appeared tonight that the Minister was sent out with a brief designed purely to bat away everything put in his way. That suggests to me that the Government are not interested in taking on board the views of Members of this House.

I am choosing to make a contribution at this stage in the debate because I believe that clause 7 is the nub of the Bill; it is certainly the area about which constituents have contacted me the most. That is because it is where we learn whether Parliament is going to be taking back control, or whether we are on the verge of leaving one big bureaucratic union to which many people in this country object—whatever our views, that is one of the reasons why people object—only to hand over unprecedented powers to Ministers in a Government who do not actually have a majority. More than anything, clause 7 is about parliamentary sovereignty and our rights as parliamentarians to represent the interests of the public, especially where they do not coincide with the interests of the Executive. That is what this is really about.

Amendment 15 addresses the fact that clause 7 attempts to define partially and envisage deficiencies that may arise. The right hon. and learned Member for Beaconsfield is right that it makes much more sense to leave this open and hence it is better to say:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate…any failure of retained EU law to operate effectively”,

and simply leave it there. The attempt to go further with a partial list does not help us.

Amendment 49 deals with a similar concern, but is clearer about the fact that delegated powers should be used only when absolutely necessary. Why should we give increased delegated powers to the Executive when we are not convinced of the necessity for them? It is their job to convince us of their necessity. Our job today is to build protection against the risk of a Minister acting excessively.

Amendment 1 makes it clear that, whatever the arguments about taking back control, no one thought when that phrase was used in the referendum campaign that it meant handing excessive powers to Ministers without proper parliamentary scrutiny; and of course, turning to amendment 32, it would be absurd in parliamentary terms if the very delegated powers that the Minister is given in order to amend defects in his plans are then capable of being used to reconstruct the entire Act. The Minister claims that that will not happen, but I was not massively convinced; it was a long performance—there is no argument about that—but I was not convinced. I have recently read Tim Shipman’s book, and I am aware that the Minister has lots of skills and talents, which came to the fore in the lead-up to the referendum. However, I wish I had seen more evidence today of how he goes around convincing colleagues; I did not witness that happening at the Dispatch Box tonight. We have to ask whether we are on a slippery slope. Is this about dismantling parliamentary authority? Is this the start of law-making by Executive fiat and therefore the bypassing of this entire place? If that is the case, that is not what we came here for and it is not what this Bill should be about.

Amendment 5 returns to the fear that existing functions, and therefore rights, could be taken away from the British people in an exercise that is supposed to be about making EU law operable from exit day. That is not the debate that we have been having here, however, and it is not what the Government have been concentrating their energies on. I cannot see how anyone who genuinely believes in parliamentary democracy could be satisfied to see this Bill, and clause 7 in particular, go through unamended. That would be tantamount to our giving up our proper rights and responsibilities.

I know that we will not come to this until another day, but by the same token it would be a total dereliction of duty if we were to make a withdrawal agreement that was not subject to full and proper parliamentary scrutiny and a meaningful vote. Otherwise, what was the referendum for? If all we are going to achieve is a transfer of power from Europe to a bunch of Ministers in a Government without a majority, we will have defeated the whole purpose of the exercise.

[John Penrose]

I sympathise instinctively with an awful lot of fears and analyses expressed by the hon. Member for Birmingham, Selly Oak (Steve McCabe); I speak as a former constitution Minister. I am the No. 2 signatory on six of the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—not quite the total number that he has tabled. I was persuaded and inspired to do that because I was equally concerned that, under the guise of taking back control, we were going to fail to take back control—that Parliament would unintentionally but none the less effectively be an end run if we were not careful.

I have been focusing on two areas. The first is the sifting committee. The second is the scope of the ministerial powers to introduce statutory instruments not only under clause 7 but under clauses 8 and 9, which are obviously linked and which will be discussed and voted on today and tomorrow. For me, and I think for my right hon. and learned Friend the Member for Beaconsfield, the sifting committee has been largely put to bed by the excellent cross-party work of the Procedure Committee, to which I pay tribute.

This might not be to everybody’s taste, but because it is a cross-party Committee, because the matter has been carefully debated and thought through, and because this is a significant step in the right direction, I am certainly willing to back the Committee’s proposal. My right hon. and learned Friend has put his name to the Committee’s amendment: he and I are not minded to press our version, which was based on proposals from the Hansard Society. We are happy not to press that to a vote, and instead to support the proposals from the Procedure Committee.

Incidentally, I must gently and respectfully disagree with the hon. Member for Birmingham, Selly Oak, because I think that the Government’s behaviour over the sifting committee amendments shows that they have given ground. They have accepted some amendments—[Interruption.] He is suggesting that they have given only a small amount of ground, but I think it could be larger than he is giving them credit for. That is because we would otherwise have faced two big problems.

One problem would have been that it is impossible for the Government to predict at this stage precisely what SIs will be introduced. We all know that there will be a large number of them, and we can probably guess what 95% of them are going to be, but we will not be able to guess 5% of them simply because we do not know what is going to be in the final agreements. There will obviously also be other things that are consequential on that that we will discover much nearer the day. Therefore, having a sifting committee of parliamentarians that can be flexible and make proper, balanced judgments of what is important and what needs a higher level of scrutiny is no small thing.

19:00

Equally importantly, the sifting committee would allow us to move at pace. If we are going to have 800 to 1,000 SIs, if we all want them to be agreed in time—we all accept that this is going to happen no matter whether we voted remain or leave in the referendum—and if we are to have a statute book that works the day after we leave, we need to be able to get through the process at pace. The sifting committee is therefore an essential method of allowing us to maintain that pace while still being able to vary the level of scrutiny.

[Mr Charles Walker]

I thank my hon. Friend for his kind words about the excellent work of the Procedure Committee. Does he accept that one of this House’s great achievements has been the work of Select Committees and the cross-party consensus that they can find and build?

[John Penrose]

I absolutely accept that. Another important thing about the sifting committee will be that many of the other bits of Brexit-related legislation that are starting their journey through this House may contain large numbers of statutory instruments—potentially primary legislation-amending statutory instruments. What we agree for this particular Bill may well be an important template for how we treat those similar powers in subsequent pieces of legislation. We are doing important work here and it is crucial that we do it. I also urge my hon. Friend to broaden out the Procedure Committee’s approach to look more broadly at SI scrutiny powers after all this is done; many of us would encourage him to do that. However, such an approach is perhaps too wide for this Bill right now.

[Sir Oliver Letwin]

Before my hon. Friend moves on from sifting, does he agree that it represents substantial progress that we have heard from the Dispatch Box today that the recommendations made by the Procedure Committee will be respected by the Government in their conduct in the House?

[John Penrose]

Absolutely. Those commitments will be important and consequential, but we also need to ensure that everything gets baked properly into the Standing Orders and that the relevant votes are passed correctly.

Moving on to scope, I think still we have further to travel. A whole slew of amendments—not just the three or four tabled by my right hon. and learned Friend the Member for Beaconsfield that I have put my name to, but those of the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others—are trying to address the scope of the powers that Ministers will be given. In fact, Ministers themselves have accepted the principle, saying that they are sympathetic to the idea of trying to limit the scope of the powers. The Minister said that both he and the Secretary of State would like to do that if they could; it seemed to be a question of how, not whether it was desirable in principle.

When I tempted the Minister in an intervention, he also said that the view in the Department is that Ministers want to try to take just enough powers to successfully translate EU laws into British laws and no more. We all accept that there must be no less than the minimum required, but he was clear that Ministers only want to take the minimum. The question is not about the principle of necessity and sufficiency; it is about how that is translated into a legal wording that will allow the principle to be clearly expressed. I gently, but I hope forcefully, say to Ministers that the words in the Bill at the moment do not pass the sniff test for an awful lot of us in the Chamber.

I am extremely pleased, therefore, with the open, positive and constructive way in which Ministers have approached the issue and with the commitment from the Dispatch Box this afternoon to go back and have a further look. I could not tempt the Minister into a firm promise to introduce an amendment, but I think that that is going to be necessary by the time we get to Report if the Bill is to be amended in a way that becomes acceptable and passes the sniff test for most of us here.

The Minister was saying—I paraphrase him—that Ministers accept the principle that the minimum necessary, the necessity test, is the right one in principle, but they cannot find the right words because if they use the word “necessary”, and they have multiple necessities, the courts will interpret that in a way that is unhelpful and does not deliver what everyone wants. The problem Ministers have is that the word that they have chosen instead of “necessary” is too broad and brings in all sorts of other possibilities that give a great deal of concern around the House that Ministers will unintentionally but in practice introduce other powers that they have said this afternoon they do not desire, need or want to give themselves in principle.

[Sir Oliver Letwin]

Is my hon. Friend sure that the source of the problem lies in the term “appropriate”? The more I have listened to the debate this afternoon, the more it has seemed that the problem may come from the word “arising”. Perhaps we need words more like “entailed by”, which would limit the scope of appropriateness.

[John Penrose]

What my right hon. Friend has just demonstrated is the point that I was just about to come on to. We are going to need different words—in the plural—than we have at the moment and the discussions that have been promised from the Dispatch Box, even if an amendment has not yet been promised, will be essential to get the issue right. It is not right at the moment.

During the debate this afternoon, three or four options have already been proposed from the Back Benches, by my right hon. and learned Friend the Member for Beaconsfield, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) just now and by a couple of others. It is clear that there is no shortage of solutions; it will not be acceptable for Ministers to say, “This problem is too hard so we are going to stick with what we have.” There are enough brains in the room for us to get this right—there are certainly enough on the ministerial Benches and among advisers. So it ain’t going to be good enough for Ministers to say, “We understand the principle and have already accepted it in our remarks today, but it is all too hard and we can’t possibly manage it.” That will not fly.

I have discussed this response with my right hon. and learned Friend the Member for Beaconsfield. We are content, based on what we have heard, not to press the amendments on scope that we have tabled here this evening. However, it will be essential before we get to Report to see some creative alternatives that solve the problems that hon. Members on both sides of the House have alluded to. People on both sides of the House can propose lots of possible solutions. We need to find some that work and make sure that Ministers are content to introduce them in the impressively constructive tone with which they have already addressed the issue of the sifting committee. That needs to be done before Report.

[Deidre Brock (Edinburgh North and Leith) (SNP)]

I speak in support of the amendments to clause 7 in the names of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other hon. Members. As my hon. Friend the Member for Edinburgh East (Tommy Sheppard) has already mentioned, they are amendments 264, 222, 73, 233, 234, 239, 240, 266, 269, 272 and 161. They are important because they go to the heart of the debate on democracy—whether so much power in so many important areas should be exercised by Ministers without substantial oversight by Parliament. I have not been reassured by the Minister’s lengthy response.

Particular importance has to attach to protecting the rights of consumers and of workers, and I was disappointed at the Minister’s rejection of the amendments we suggested. We have heard some rumblings from Government Back Benchers and fellow travellers that leaving the EU is an opportunity to strip away protections from workers, consumers and the environment, and to cut supposed “red tape” from manufacturers and producers. The hon. Member for Wakefield (Mary Creagh) reminded us of the previous views of the Secretary of State for Environment, Food and Rural Affairs on this. The Foreign Secretary has also been one of these siren voices in the past, and the Brexit Secretary wrote an article during the EU referendum in which he said:

“The continental response to competition is, rather than trying to compete, to make sure that regulation tilts the playing field in their favour.”

He also said that:

“while the single market may seem like a good idea, in reality it has distorted market incentives, reduced competition and burdened European economies with unnecessary regulations.”

So there are people at the very heart of the UK Government who seriously believe that regulations designed to keep us safe and to prevent us from being ripped off, and regulations to ensure that the environment gets a break and that workers get paid and protected properly, are bad things. There are Cabinet Secretaries of the opinion that these things were invented by European bureaucrats as a weapon against UK productivity—that truly is health and safety gone mad.

I mention the current Government members to make it clear that there is a clear and identifiable danger to our continued safety, to the standards we expect in goods and the services we buy, and to the rights that workers enjoy—and it occupies Whitehall today.

As has been said by other Members, the extent of the power aggregation is such that it would leave Ministers, in effect, changing primary legislation by fiat. This is a coup, a very Tory coup, that is seizing power from this place—the power to create and amend legislation—and centralising it in the hands of a few who would have nothing to do with these protections and who would claim that we did well enough without them before.

[Sir Hugo Swire (East Devon) (Con)]

Does the hon. Lady believe that the British electorate were better protected when these powers resided in Brussels, as they indeed still do? Does she think the people making these decisions in Brussels were more accountable than Ministers will be in this House after we leave?

[Deidre Brock]

This is exactly the point, is it not? Under this form of legislation Ministers will not be as accountable to this House. I am also of the view that environmental legislation, for example, has been well served by the European Parliament, so I have to disagree with the right hon. Gentleman.

Parliamentary scrutiny would be severely limited by the form of statutory instrument being proposed, but the sheer volume of secondary legislation that is likely to be washing through the system will render effective parliamentary scrutiny almost impossible. We need checks and balances inserted into the system to ensure that there is not legislation made in haste for which we all repent at leisure. I welcome the fact that at least a sifting committee has been accepted by the Government, but it does not go far enough. It would be a sensible argument for this secondary legislation, where it is necessary, to be subject to the super-affirmative procedure. I would like to hear from Ministers why that has not been considered or, if it has, why it has been rejected. Such an approach would not solve the problem, but it would, at least, nod in the direction of solving it.

We also have to recognise that other Administrations have a substantial interest in these decisions, and a degree of co-operation and respect is required. Therefore, “taking back control” has to have an element of that good, old-fashioned, EU principle of subsidiarity. Decisions that have large impacts on the devolved Administrations should be co-decisions. That is why the Joint Ministerial Committee should be involved in making them; it is why there should be proper consultation across the Administrations before changes are made to social security provisions; and it is why there should be consent from the Welsh and Scottish Administrations for any changes to the law that affect provisions within devolved competences.

We have heard the opinions of parliamentary Committees and of outside bodies. I know that experts are not viewed particularly favourably on the Government Benches, but they do have an important role to play, and many experts, including the Law Society of Scotland and the Equality and Human Rights Commission, have expressed serious concerns. Those concerns should be heeded in this place and heard by Ministers. It is clear that the furious Brexiteers who drove on when sensible voices were urging caution have ignored this advice:

“Heat not a furnace for your foe so hot

That it do singe yourself.”

19:15

[Nicky Morgan (Loughborough) (Con)]

I rise to speak to new clauses 53 and 77 and to amendments 385, 1, 2, 3, 5, 48 and 49. In view of all the speeches we have heard so far and the long speech from the Minister, I hope to deal with these matters quite briefly because many of the issues have already been discussed and, in some ways, addressed from the Dispatch Box.

Today, we are debating the rectifying of deficiencies that would result from bringing EU law into UK law. As my right hon. Friend the Member for Broxtowe (Anna Soubry) said, whatever we might think about the process of leaving the European Union, it is happening and we need to bring EU law into UK law if our withdrawal is to work successfully. I have always said that Brexit is good news for lawyers, and I say that with respect to my former profession.

New clause 53 was spoken to so impressively by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), and through it he seeks to address the potential loss of family reunion aspects of the Dublin III regulation and to propose alterations to the UK’s system by taking the key definition of “family” from the Dublin III convention and applying it to the UK’s refugee family reunion rules. Earlier this year, as my hon. Friend said, we went to Greece as guests of UNICEF to visit and talk to those who had travelled and were seeking refuge and looking to join family members in other parts of Europe. It was a moving and rather depressing but also ultimately inspirational visit that showed the power of the human spirit, particularly in younger people in search of a better life.

Parents and families often send their young people off to look for a better life here in Europe. Many of the young people we saw had made the dangerous journey to access family reunion under the Dublin III rules. As my hon. Friend the Member for East Worthing and Shoreham said, Dublin III allows children to join their extended family once they reach Europe. Under the regulation, the definition of extended family includes uncles, aunts, grandparents and older siblings. If, after Brexit, children fleeing war and persecution will be able to rely only on the UK’s immigration rules, they will have a right to be reunited only with their parents, as the existing UK immigration rules provide only for the right of parents with refugee status or humanitarian protection to sponsor their under 18-year-old dependent children to join them in the UK. The UK rules do not provide the same right to other family members.

We have to recognise that in many of these circumstances, it is because a young person’s parents have perhaps been killed or are unable to look after them that wider family members might offer protection and the chance of a new life. Ministers were clear, right from the White Paper onward to the way the Bill was presented on Second Reading, and in speeches on this subject, that no rights would be changed or policy changes made in the Bill. It is about making sure that EU law that is brought back to the UK works and that deficiencies are corrected if necessary.

[Sir Oliver Letwin]

Did my right hon. Friend share my puzzlement at the answer that the Minister gave to that point at the Dispatch Box? It seemed an argument was being made that Dublin III requires co-operation that would be impossible to guarantee. As I understood it, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and my right hon. Friend herself are both recommending a change in our immigration law to ensure that we parallel the situation that currently obtains under Dublin III.

[Nicky Morgan]

My right hon. Friend puts it extremely well. I was going to say that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), was one of the most ardent campaigners for the UK to leave the European Union, presumably—I think I have heard him and others say this—on the basis that the UK would then be able to do what was right for us and what we judged to be in the national interest and the right thing to do for our place in the world, so there was irony in his saying that we would not be able to do that because of restrictions and because it would not be allowed under the rules. That seemed to drive a coach and horses through what has been sold to me sometimes as the benefits of Brexit. I might remain unconcerned, but on this, I think that there might well be an opportunity for us to improve the current situation. I hope very much that the UK Government will take up such an opportunity.

If leaving the European Union gives us a chance to provide more clarity to our immigration rules, it has to be a good thing. From what the Minister said, I understand that there may be another piece of legislation, namely the forthcoming immigration Bill, that might be more suitable for tackling the issue. As my hon. Friend the Member for East Worthing and Shoreham said, we have spoken to the Minister for Immigration. I hope that we can take advantage of this opportunity to look again at the rules to clarify the fact that we want to mirror the Dublin III rules as we go forward. Ministers can be assured that, if this is not picked up when we get to that immigration Bill, my hon. Friend and I will be tabling a similar amendment in order to probe further and to hold the Government to account.

It is important that the United Kingdom remains committed to helping the most vulnerable both here and abroad. Surely that must be partly what a global Britain—by which I mean Britain taking its place on the world stage and making a difference—has to be about. This is the sort of amendment that says much about our values as a Government, as a party and also as a country. We do not want to make it even harder for young people to come to this country to build a new life and to make the most of themselves. I view this issue through the inspirational work of the Baca charity in my constituency.

Let me turn now to new clause 77 and amendment 385, which were spoken to so well by the hon. Member for Birmingham, Yardley (Jess Phillips). She knows a lot about these sorts of issues so I will keep my remarks very brief. Again the point is that the protections for those at risk of violence or worse must surely be maintained as we leave the European Union. I cannot honestly believe that any Member in this House would want Brexit to stop the current protections for those at such risk.

The hon. Lady’s amendment picks up on the European protection orders that allow a person who is protected against a perpetrator in a member state to retain that protection when they travel or move within the European Union. I heard what the Under-Secretary said at the Dispatch Box. I take the point that this is a detailed amendment and that, perhaps, it is better dealt with by the relevant Ministers from the relevant Department—the Home Office. I think that the Minister, who is back in the Chamber, did agree that this point would be, and should be, on the negotiation agenda. The desire for UK courts to continue to recognise European protection orders after exit date must surely be right, and I will support the hon. Lady in her amendment. There are a number of other Members—I cannot remember the exact number—who have signed this amendment to make sure that these issues are on the negotiation agenda. When talking about leaving the European Union, it is very easy to boil it all down to trade, to numbers and to statistics, but there are people whose lives will be affected, as we have also seen with EU citizens living here and UK citizens living abroad.

Finally, the Prime Minister has been committed throughout her political career to ending human trafficking, fighting female genital mutilation and having a strong strategy to fight violence against women and girls. She has been very clear on this, so I cannot believe that she would not want these protections to be upheld after the exit date.

Finally, let me turn to the Henry VIII powers and the amendments laid by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) who was particularly concerned about the concentration of powers in the hands of Ministers. I think she is right. I am a former lawyer, and one of the legal tendencies is continually to try to draft against what can go wrong when a client is about to embark on something—whether they have been advised to do it or not to do it. A lawyer’s task then is to try to find them protections. Although we can have confidence in current Ministers with regard to the powers that they might want to exercise, we never know what might happen in the future. If this Parliament does not ask why Ministers want all these powers and what they are going to do with them, the next generation of MPs, and the ones after that, will want to know why; they will want to know why we did not seek to apply some limitations on the exercise of those powers.

I am pleased that the Government have listened to the concerns about Henry VIII powers and are going to accept the amendments tabled by the Chair of the Procedure Committee, my hon. Friend the Member for Broxbourne (Mr Walker). He has secured an important concession—that Ministers will keep Members of Parliament informed of the forthcoming statutory instruments. I hope that Ministers will take that on board. Parliament must be involved in scrutinising powers that are exercised by the Executive. It is a fundamental tenet of this country’s unwritten constitution. I have set out two examples: the protection of the rights of vulnerable children and of those at risk of violence or worse. We should be asking how the statutory instruments needed to bring those laws back from Europe will be exercised and drafted, and we should be checking it all.

[Sir Oliver Letwin]

Does my right hon. Friend agree that the proposed changes to the standing orders are particularly welcome in that they provide specifically for the new committee, as I understand it—I am looking for approval from the Chair of the Procedure Committee —to use the Select Committees that deal with each Department to look in detail at the departmental statutory instruments, so we will have real expertise available?

[Nicky Morgan]

That is an excellent point and a very good idea. There has always been a wider call for the Treasury Committee, which I am privileged to chair, to look more broadly at finance legislation.

The Minister had a difficult job this afternoon. There were a lot of amendments for him to deal with, many of which were very detailed and some of which were clearly not within his departmental remit. This proves the point that we do need Members of Parliament who have an expertise in their background, sit on a Select Committee or have held a particular ministerial brief. This is the time for them to offer their expertise to the House and the country in order to ensure that we get the law that we are bringing back from the EU correct.

[Mr Charles Walker]

My right hon. Friend is making an excellent speech. Does she agree that although time is short and there is a great deal of urgency to get this done, it seems that the House is up for it, and that we will find the time and the sense of vim and vigour to really exercise our scrutiny function?

[Nicky Morgan]

I absolutely agree with my hon. Friend. I hope that those listening get the impression that, whatever our views about the wisdom or otherwise of leaving the European Union, the fact is that the decision has been made. We need to make it work in order to set things up for the next generation of people in this country and for the next generation of Members of Parliament, who at some point we will hand the batons on to in our constituencies. If we are to do that, we have to ensure that the legal system we put in place works, the details are right and adequate scrutiny has been given.

The appetite of Members to debate this Bill—I am sure that this will happen on other consequential Bills needed to implement our withdrawal from the EU—shows that we are prepared to put in the hours and want to help. It also helps to build a consensus in this House. I hope that that will show the country a leadership that is about Members of Parliament taking responsibility for getting it right for the country and acting in the national interest. On this critical issue of EU withdrawal, which will affect the country for decades to come, we must absolutely show that leadership as a House.

My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) talked about Parliament being here to improve legislation. Amendments should not be an affront to the Government. They will obviously disagree with some. They might agree with the principle of others, but would want to reword them in a way that finds approval with the parliamentary draftsmen. There will also be some that they will initially want to resist, but if they test the will of the House, they will find that Members want to make those amendments. In fact, such amendments may very well improve legislation and help with parliamentary handling. As the Minister said, we are dealing with 40 years of law and there are hundreds of issues, but there is an opportunity to do things in the UK’s way.

I am very persuaded by amendment 49, which talks about the limitation of powers and having no concentration of powers. There are perhaps improvements that can be made to it, and the amendment the Government have said they will accept on the work of the new sifting committee is very welcome. However, the amendment sends an important signal about the way the constitution in this country works, and for that reason, if the right hon. Member for Normanton, Pontefract and Castleford presses it, I will support it this evening.

19:29

[Angela Smith]

I am grateful for the opportunity to speak in this important debate. It is a real privilege to follow the right hon. Member for Loughborough (Nicky Morgan). I rise to speak primarily to new clause 18 and to new clauses 24 and 27 and amendment 124. I will also speak more broadly to a range of amendments that have been selected for today’s debate.

Clause 7, which today’s proceedings are primarily concerned with, stands as a significant extension of the powers available to Ministers of the Crown. The speech by the hon. Member for Weston-super-Mare (John Penrose) went to the heart of the debate we have had today in relation to what he called the principle of necessity. His test for whether clause 7 stands worthy to pass through to the next stage of the legislative process is, “Does it meet the principle of necessity or go beyond the test necessary to meet the principle of necessity?” I would suggest that, as it stands, the clause does not meet that test.

The right hon. Member for Loughborough made a point that my hon. Friend the Member for Nottingham East (Mr Leslie) made at the beginning of today’s proceedings: one of the key questions relating to that test is whether Members of Parliament in the future will look back at what we do today and over the next few months and determine that we gave Ministers too much power in this Bill. For me, that is one of the real questions at the heart of the principle the hon. Member for Weston-super-Mare outlined earlier.

As it stands, the only pieces of legislation safeguarded in the clause are the Human Rights Act 1998 and some aspects of the Northern Ireland Act 1998. As has been pointed out many times this afternoon, not even the Bill is safe from the hands of Ministers once enacted. As drafted, the Bill will give Ministers flexibility way above and beyond what is necessary, allowing them to create or amend any legislation on the UK statute book to mitigate any failure or deficiency in retained EU law.

I am not convinced that my constituents—even those who voted to leave the European Union—possess the sort of blind faith the Government seem to be asking for, and I certainly do not have that blind faith at the moment. Indeed, a number of parliamentarians on both sides of the Chamber clearly have significant reservations. Further, of course, I am not persuaded that such sweeping powers are necessary.

I understand that the time constraints associated with the article 50 process and the volume of legislative amendments required to implement Brexit put pressures on the Government—I totally acknowledge that. I also understand that putting all the corrections into the Bill at this stage would be entirely impractical and that the Government do require flexibility to respond to all eventualities as negotiations with the European Union take place. In that sense, the spirit of the debate today has been very helpful, and the Government have to concede that most of the contributions have been made with the intention of improving the Bill and ensuring that it works in protecting the legislation we want to transpose into UK law.

Even so, as I have said already, the powers the Bill asks for are too broadly defined and risk undermining the sovereignty of Parliament. There is a balance to be struck between giving the Government the necessary tools to implement Brexit and not forgoing parliamentary scrutiny. What the Bill proposes does not strike that balance, which is why I support new clause 24 in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), which stands as a really serious attempt to define properly the principle of necessity.

Just last year, the Brexit Secretary told the Commons Select Committee that he did not foresee any major or material changes being made by delegated legislation. If that is not necessary, what possible justification can he have for including such sweeping powers in the Bill?

In its recent report, the Lords Constitution Committee outlined a number of requirements of Bills granting Henry VIII powers. In essence, it recommended that the breadth of any powers given should be as narrow as possible, which is clearly not so in this case. This point is furthered by the Supreme Court justice, Lord Neuberger, who says that

“the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.”

In other words, the broader the powers given, the more likely that, if exercised, litigation will follow. That point was made very powerfully by the right hon. and learned Member for Beaconsfield (Mr Grieve), and the Government do need to respond to it.

In their March 2017 White Paper, the Government said that their proposed procedures represented

“the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area.”

I am afraid that so far, despite the concessions made, we have not got there. There are issues relating to the scope of the Bill that have been very clearly articulated today. Amendment 392, accepted by the Government, represents progress, but it does not go far enough because it deals only with part of the problem.

Triage is fine, but at the end of the day the scrutiny process does not allow Parliament to amend or send back a statutory instrument for further consideration by the Government. That is a real weakness in the scrutiny system that must be addressed, as the right hon. and learned Member for Beaconsfield said. That is why I support new clause 18, which gives Parliament the chance to look properly and in depth at what is needed to ensure that Parliament has proper powers of scrutiny over the delegated legislation process in relation to this Bill. The Hansard Society report gives us a really good start in that process. The Government have no need to be alarmed about new clause 18. This can be done reasonably quickly, and Parliament has the right to expect it.

The hon. Member for Brighton, Pavilion (Caroline Lucas) is not here to speak to her new clause 27, which is a shame, because the environment is at the very heart of the Brexit process, yet so far it has been fairly peripheral to the debate. If we are going to get Brexit right, the Government need to understand that environmental standards are the one thing that matters to every citizen in this country. Everybody who voted in the referendum, whether leave or remain, will expect the Government to maintain environmental standards at least to the level where they are now.

[James Heappey]

The hon. Lady says that the environment has been peripheral to the debate so far. I am sure that she will have seen the comments from the chief executive of Greener UK and the enthusiasm of that organisation regarding the debate that we had in this Chamber one evening two weeks ago when we spent four hours debating the environmental parts of the Bill.

[Angela Smith]

The test of whether the Government are committed to maintaining environmental standards—and indeed to improving them, as the Secretary of State continually tells us—will be whether their approach to our future outside the European Union allows those environmental standards to be maintained. If we fall back on World Trade Organisation rules, it will be extremely difficult for this country to maintain environmental standards at the level we enjoy now.

The Environment, Food and Rural Affairs Committee is currently looking at this issue. People in every single aspect of the agricultural sector—whether beef, lamb, poultry, pork, cereals or grain—have said that if we fall back on WTO rules, environmental standards may have to fall because we will lose our competitive edge and we will not be able to compete within that scenario. Environmental standards are not being taken seriously enough by the Government.

It is all very well for the Secretary of State to make populist claims about what he wants to achieve—when, indeed, what he was claiming he had already achieved has not been delivered—but he has to put his money where his mouth is. He cannot be a hard Brexiteer and a champion for environmental standards. The two are completely contradictory. [Interruption.] The hon. Member for North East Hampshire (Mr Jayawardena) can shake his head, but every sector in the economy is making this point.

The chemicals industry wants to stay within REACH, as does the water industry. Every major industry in this country likes the environmental standards that we enjoy now and wants to maintain them but worries about the impact on our environmental standards of not having a deal and not staying in the single market. It is all very well to live in a wonderful cloud cuckoo land and think that we will continue to enjoy in future everything that we have got now and that we will be able to do trade deals across the world, while ignoring the reality that we live next door to the European mainland. I do not know whether the hon. Gentleman thinks we can deliver that, but those on his side of the argument have so far failed to tell us how we will do so.

[Wera Hobhouse]

Does the hon. Lady agree that the European Union has been a force for good for the environment? Through the European Union, this country has done things that it would never have done on its own.

[Angela Smith]

Environmental standards have improved in this country because the European Union—particularly the single market—has employed the concept of the level playing field. We have been able to maintain high environmental standards because we are competing at the same level as every other member state and the majority of our trade is with the European Union. One can only think about what will happen if our doors are opened, in an unregulated environment, to imports of American beef, American cereal and all the rest of it. What guarantee can those on the leave side of the argument give us that we will be able to protect ourselves with environmental legislation in that context?

[Vicky Ford]

I agree with the hon. Lady that a great deal of European legislation on the environment has been a force for good, but I warn her against scare- mongering, because much of that great European environmental legislation was led by British influence. British MEPs led the habitats directive, the birds directive and much else. The Government have said that they are committed to keeping high standards and not introducing hormone beef, chlorinated chicken and so on.

[Angela Smith]

I thank the hon. Lady for her intervention, but she clearly was not listening to what I said. Of course the UK has led on many of those improvements, but why were they secured? Because we are in the single market, which is the reason why the standards work and have become embedded in the European Union. The single market helps us to maintain the level playing field that is necessary if we are to compete effectively in it, and leaving it will endanger the maintenance of those standards. If we fall back on WTO rules, certain standards cannot be properly assessed when a country makes its mind up about what it can and cannot import.

We have to be careful about assuming that we have been some kind of marvellous leader in environmental standards in the European Union. Yes, we have, but the mechanism that has made that possible is the single market. As was pointed out earlier, a Conservative Government helped to put together the architecture for the single market, because they understood the importance of that mechanism for delivering the standards that we all enjoy.

If any Member wants to put all that in danger, all I ask is that they think carefully about doing so, because the consequences could be really rather severe. That is why I will be supporting amendment 124. At the end of the day, it is really important that, as the Prime Minister has pointed out and as I said in my earlier intervention, nothing is agreed until everything is agreed. On that basis, nothing in the Bill should preclude the possibility of the UK staying in the single market and the customs union. That is really important, and Parliament needs to take that point seriously.

19:44

I finish with a plea to every member of the Committee. I will be voting for amendment 124 tonight, and every Member has to take account of the national interest on this principle. In my view, tribalism and falling back on the party line is no longer good enough. The decisions facing this country and its long-term interests and prosperity really do demand something better. Now is the time to make one’s mark, and if any Member considers staying in the single market to be the right way forward, they should make that clear by making such a case and voting for amendment 124 tonight.

[Mr Ranil Jayawardena (North East Hampshire) (Con)]

It is always a pleasure to follow the hon. Member for Penistone and Stocksbridge (Angela Smith), for whom I have a great amount of time. I shall not continue the debate about the environment on this occasion, but I welcome her consideration of points of scrutiny. I have, however, come to a slightly different conclusion, as I will outline in a moment.

It is a pleasure to speak to the amendments tabled by my hon. Friend the Member for Broxbourne (Mr Walker), which are also in my name and those of other Members. In particular, I am delighted that the Government have accepted amendments 393 and 397. I believe that this demonstrates consensus, and I want to focus on consensus this evening. These amendments have been tabled by Procedure Committee members from both sides of the House and, indeed, from both sides of the Brexit debate. They genuinely benefit from a consensus of support precisely because they do not seek to replay the many arguments of the referendum or undo the will of the British people as expressed in it. We recognise that the UK has voted to leave, and the amendments come up with a way of helping to make that happen.

One reason why that is important, particularly in the context of scrutiny, is that the referendum day poll of about 12,000 voters, commissioned by the noble Lord Ashcroft, showed that the biggest single reason for voting leave—it was given by over half of leave voters—was to take back control of, among other things, the laws and decisions of the United Kingdom. The amendments tabled by the Chairman of the Procedure Committee do just that: they focus on sovereignty, give Parliament control and ensure scrutiny of our laws.

As my right hon. Friend the Member for Broxtowe (Anna Soubry) said, it is important to recognise that amendments, whether these or others, are not necessarily seeking to reopen the Brexit debate. These amendments certainly do not do so; otherwise, I would not be supporting them. Instead, it is important to consider how to provide scrutiny of the laws that will be in place once we leave the European Union, which is what people have voted for.

In this instance and in that context, I am content with the Government’s proposed usage of the so-called Henry VIII powers in the Bill. The Leader of the House and the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), were very frank and reassuring when they appeared before the Procedure Committee, as did the shadow Leader of the House, in what I thought was a good-spirited discussion of the substantive issues at stake.

I will come on to the scale of the challenge ahead in a moment, but I just want to say that, for a number of reasons, I am not particularly worried—strangely, some Labour Members have said they would be—about what would happen if the Labour party were ever in government again. The first is that the powers are mostly limited in nature. I do not want Labour Members to come back into government, for reasons that will be obvious, but I am not worried because the Government have clearly set out what the secondary legislation is and is not intended to do.

The Bill enables Ministers to create the necessary correcting instruments to prevent, remedy or mitigate any failure of or deficiency in retained EU law, but, as the excellent and independent House of Commons Library briefing sets out, “express legal limitations” are imposed on the secondary legislation. The secondary legislation cannot be created to impose or increase taxation, to create new criminal offences or, as the Minister said earlier, to amend human rights legislation. This is a well controlled piece of legislation designed to deal with the challenge of leaving the European Union in a way that allows parliamentary scrutiny while ensuring that the Government can get a smooth and orderly Brexit through this place.

Primary legislation will be needed on a number of key issues over which Parliament will become sovereign when we leave the European Union, such as a customs Bill, a trade Bill, an immigration Bill, a fisheries Bill, an agriculture Bill, a nuclear safeguards Bill, an international sanctions Bill—I am sure there are many more in the minds of Ministers—but there is only a short space of time. Given the sheer volume of retained EU law, there is no alternative to the Henry VIII powers for dealing with any deficiencies. The delegated powers under clause 7 are essential in that light.

The alternative would be legal chaos. With over 20,000 EU laws, having an individual parliamentary vote on each would take over 200 days of parliamentary time—sitting 24 hours a day, seven days a week. To be rid of that chaos, which I hope Opposition Members seek to rid our country of, and to provide the certainty that I am sure businesses in their constituencies and mine want to see, and indeed as witnesses to the Procedure Committee have pointed out, with this volume of delegated legislation being made in such a short space of time, any additional scrutiny by Parliament will provide further legal certainty to the courts and confirm that any law is the will of a sovereign Parliament, but it must be done in a way that allows the Government to get on and do it.

That brings me to a potential concern, which I hope Members agree has been satisfactorily addressed. As the Government have been at pains to make clear many times, the main purpose of the Bill is twofold: first, to respect the referendum result; and secondly, to ensure that our country has a functioning statute book on leaving the European Union. I was therefore pleased to see the inclusion of condition 3 in amendments 393 and 397, which makes it clear that if no recommendation as to whether regulations should be subject to the negative or affirmative procedure has been made by a committee of the House, then after 10 sitting days they can proceed by the negative procedure.

I hope that no committee would seek to play such games on this issue, such is the significance of leaving the European Union, but this critical condition will prevent any committee that was so minded from frustrating the progress of a statutory instrument in order, by extension, to frustrate the will of the British people to leave the European Union positively and constructively. It will stop that happening, enabling scrutiny without sabotage.

Let me affirm again that I am very pleased that these amendments have secured consensus across the parties. While the United Kingdom is leaving the European Union—that is not up for debate—this, I believe, will help to ensure that there is parliamentary scrutiny of the laws that need to be in place once we leave, but without stepping on the Government’s legislative toes or tying their hands in the negotiations with the European Union. That is ever more important as we progress to the stage 2 negotiations on trade and other matters. That relates to amendment 124.

I firmly believe that trade is our kingdom’s path to prosperity, and our generation’s chance to widen consumer choice, reduce the cost of living, improve quality of life and give those with the tightest purse strings a hand up. This we seek to do while maintaining the greatest possible access to, but not membership of, the single market. Leaving the European Union is not just about economics and markets, though; it is about the political and constitutional view of the British people. It was a vote to take back control of our laws as well as our borders, trade policy and money. These amendments enshrine that control.

I understand that the Government have accepted these amendments, and I hope that they will have continued support across the House, and indeed that the committee, once it is set up, will have the support of Members across the Brexit divide, ensuring that it can conduct its work in an effective and well respected manner.

[Kerry McCarthy (Bristol East) (Lab)]

It is a pleasure to see you in the Chair, Mr Hanson.

I rise to speak to support new clause 24 and amendment 96, in my name, as well as amendment 104, also in my name, which relates to new clause 27 and others on institutional arrangements. I do not know whether the hon. Member for Brighton, Pavilion (Caroline Lucas) intends to return to the Chamber to press new clause 27 to a Division, but it is an important clause about governance arrangements and I hope she does.

It is welcome that the Government have accepted the Procedure Committee’s amendments. There was much concern about the sweeping powers set out in clauses 7, 8 and 9, which, as many Members have said, would give Ministers excessively wide powers to make secondary legislation. There has been near universal recognition that we need to strengthen sifting and scrutiny powers, and there is huge scepticism about the process under schedule 7 for sifting through the 800-plus statutory instruments. There is a suspicion—I believe it to be justified—that it was to avoid much needed parliamentary scrutiny and that it could be used to weaken EU laws in the process of transposition.

I understand what the hon. Member for North East Hampshire (Mr Jayawardena) said, which is that there simply is not the time to work through them one by one, but that is why some of us voted against triggering article 50 when the Government chose to rush into it. We knew that this was an incredibly complex procedure and that it would not be easy in the way that some Conservative Members said it would be. We needed the time to do this properly. The reason we cannot do it properly is because we triggered article 50 too early.

[Mr Jayawardena]

Does the hon. Lady not accept that the European Union was very clear that until we triggered article 50 we could not begin any of the discussions to allow us to consider any of these matters?

[Kerry McCarthy]

In the previous Parliament, I was a member of two Select Committees. I was on the recent chemicals inquiry. It is not just that Ministers have not got their heads around it and do not know where they want to go in terms of chemicals regulation, it is that they have not even had discussions with stakeholders. They have not even explored the issues. They are coming to it almost with a blank sheet of paper way after the referendum vote was held. A lot of these discussions should have taken place before we even had the referendum, so we could know what we were letting people in for.

I welcome the Procedure Committee’s amendments, but they do not provide for enhanced scrutiny as such. They simply provide a mechanism for a committee to recommend that statutory instruments introduced under the Bill should be treated under the affirmative procedure rather than the negative procedure. The committee sits, but it does not scrutinise. Members may request a debate and a vote, but they cannot require a vote to take place. The White Paper said that MPs could require a debate, but that is simply not correct. The Hansard Society described that inaccuracy in the White Paper as ignorance at best, deception at worst. Members who have been in the House for some time will know that for an affirmative resolution to be objected to and end up in a proper debate is very rare. The tactic is used very infrequently. I believe we need a model that allows for enhanced scrutiny. It should include options such as: requiring a Minister to provide further evidence and explanation for the statutory instrument; requiring a debate and vote on the Floor of the House; allowing a committee to be able to recommend amendments to a statutory instrument, which many Members have mentioned; and public consultation. My hon. Friend the Member for Wakefield (Mary Creagh) talked about alerting Members to what is being brought forward before the House as a statutory instrument, because it is all too true that so many of them just pass unnoticed and we do not know what we are legislating on.

Enhanced scrutiny alone is not enough. The power to make corrections in clause 7 is still too broad, too general and too vague. It needs to be improved and clarified. The Bill must also put stronger substantive limitations on the powers in the Bill itself, including a general limit, as in new clause 24, and specific limits to safeguard environmental standards, such as in amendment 96. It is only by carefully restricting the Government’s powers and effectively scrutinising their use can we prevent powers in the Bill from being used in ways that weaken environmental protections or threaten to roll back 40 years of environmental gains. The hon. Member for Wells (James Heappey) said that Greener UK praised the earlier debate on the environment. I think it was praise for the amendments tabled and the discussion rather than the end result, because the Government did not accept any of the amendments, but we will continue to push on those issues.

20:00

It is also essential to reduce the huge scope for error in this process and to ensure that, as is its stated purpose, the Bill achieves a workable framework of law seamlessly transposed from existing EU law. I accept that a method is needed to allow us to bring forward technical regulations to implement the legislative consequences of leaving the EU, and we need to be able to do that flexibly and speedily. It makes sense that a significant proportion of the modifications are made by statutory instrument, given their technical nature and the limited time available before exit day. Earlier, the Minister described such modifications as “often” of a technical nature, and the “often” is where difficulty arises. If they were just technical changes, we would all be fairly comfortable with the process suggested. It is the fact that they are not all of a technical nature that gives us grounds for concern.

It is crucial that any powers to modify laws given to Ministers by the withdrawal Bill are restricted. They must only be used to ensure that retained EU law continues to operate with equivalent scope, purpose and effect. The purpose of my new clause 24 is to ensure that the powers to create secondary legislation given to Ministers by the Bill can be used only in the pursuit of the overall statutory purpose, namely to allow retained EU law to continue to operate effectively after exit day.

New clause 24 is slightly different from some of the other amendments that address the same democratic deficit in the Bill, in that its schedules must 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 fact that it must be used places a positive obligation and makes sure there are no gaps.

My hon. Friend the Member for Wakefield talked about the concern that the explanatory notes refer to removing the requirement to obtain a legal opinion. Obviously, we would not look to obtain an opinion from the European Commission on a given issue, but the fact that it allows that requirement to be removed completely was covered comprehensively by my hon. Friend. I just want to flag up that I agree with her comments.

I spoke about requirements during earlier stages of the Bill, and although they might look dry they are a crucial stepping stone in ensuring that the Government are complying with environmental standards. If there is not that reporting, monitoring and assessment, how do we know how the Government are faring? To give what might seem like a fairly obscure example, article 10 of the birds directive requires member states to send the European Commission reports of how we are doing, but it was never fully transposed or implemented by the UK Government in relation to the marine environment. Basically, seabirds are not covered, and unless we implement new clause 24, that will be lost.

Obviously, article 10 is not the be-all and end-all, but it is an example of where reporting is important. The approach to seabird data collection has been very patchy and since 2006, when the European seabirds at sea programme ended, there has been no state-co-ordinated or state-funded programme for systematic survey and monitoring at sea. Most of the surveys are carried out by developers looking at proposals for oil, gas and windfarms. They come at it with a certain mindset and objective, yet that is the only data we have on the aggregation of seabirds at sea. Those surveys are not designed to identify areas for site designation or to monitor change. As I said, it is non-systematic and patchy.

It is important that we implement article 10 of the birds directive in full, but my point today is about the reporting requirements. If they disappear, where does that leave us? The White Paper’s description of technical amendments used reporting requirements as an example and the impact assessment used reduced reporting as an example. That gives me cause for concern that the Government will use a statutory instrument to chuck out this requirement. At the moment, the Government are required to report to the Commission every five years. Will that be replaced with no reporting requirement at all?

The Government’s environmental reporting obligations must be put on a domestic footing, and my new clause places a positive requirement that delegated legislation under the Bill is used to ensure that EU law continues to operate with the same scope, purpose and effect. My amendment 96 would specifically prevent the powers from being used to weaken environmental standards.

Finally, I want briefly to speak on amendment 104, which relates to new clause 27. I see that the hon. Member for Brighton, Pavilion is here. I hope that she has a chance to move her new clause at the end of the debate. The Secretary of State’s promise of a new independent statutory environmental protection body and a public consultation early next year is welcome, but we need much firmer reassurances, and I believe that they should be written into the Bill. Amendment 104 would provide for any new public authority established under secondary legislation to be temporary. It would be wildly inappropriate for the new body to be implemented via the secondary legislation powers conferred by the Bill. The enforcement body must be established by primary legislation.

The promise of a consultation early in the new year is welcome, but we need the Government to commit to a firm timetable for that consultation, and it should be published as quickly as possible, while there is still time for us to consider its implications for the withdrawal Bill. We cannot go through Report without knowing what the Government have in mind. Obviously, a Bill would be needed to establish the new body before March 2019. This is vital if we are to avoid a governance gap.

In conclusion, it is important that we enshrine more ambitious environmental protections in law. It is easy for the Government to be self-congratulatory. I can give examples of where successive UK Governments have been very good in pushing for progress at EU level, but I can also give many examples of where they have perhaps been a brake on progress, so it is important that we enshrine them in law. A green Brexit should mean going further than existing levels of protection, and the Government should commit to setting out plans for a new ambitious environment Bill. When I spoke on an earlier day in Committee, the Environment Secretary sat down on the Front Bench just as his Back-Bench colleagues were telling the Committee that he was committed to bringing forward such an environmental protection Bill. I am not entirely sure he knew what he was nodding at, but he nodded to say yes. It is important that we get some clarity from him soon.

[Several hon. Members rose—]

[The Temporary Chair (David Hanson)]

Order. Before I call the next speaker, I remind hon. Members that we are just over an hour away from the knife, and I still have 11 hon. Members seeking to catch my eye. Time will have to be very limited if all hon. Members are to get in.

[James Heappey]

It is a pleasure to serve under your chairmanship, Mr Hanson. I wish to speak about the many amendments that concern environmental regulation, specifically new clause 27, amendment 104 and new clauses 62 and 63. Like many other speakers, I have received some excellent briefing material from Greener UK, which encapsulates the ambitions of many in the non-governmental organisation community, and I would like to thank it for the enthusiasm with which it has engaged with colleagues on both sides of the House. It has made an excellent effort in seeking to make very clear what it expects. It is clear also that there is a consensus about what we are trying to achieve. There is just a slight disagreement about how exactly to legislate for it.

I hope that hon. Members on both sides of the House, irrespective of what they think should be done to the withdrawal Bill, would congratulate the Environment Secretary on the excellent commitments he has made in recent weeks. They have shown very clearly that the ambition for environmental regulation after Brexit is not merely to maintain the status quo, but to take UK environmental regulation further. That is great news.

We also want the environmental principles enshrined in UK law. We debated that point at length the other week, and there was some satisfaction that that was indeed the Environment Secretary’s intent for the Bill he will bring forward. I agree with my near neighbour, the hon. Member for Bristol East (Kerry McCarthy), that it was a shame that Hansard could not record his nodding during the speech of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but there is no doubt that those of us in the Chamber clearly saw his acquiescence to the requests being made.

[Kerry McCarthy]

I think Hansard did record that the Environment Secretary nodded his assent, but I am not entirely sure that he knew what he was nodding his assent to.

[James Heappey]

For those of us with an environmental mindset, there is a temptation—and I may say more about this later—to think that it is almost too good to be true that the Environment Secretary should sit there and, quite unequivocally, nod to all those requests. People are not quite willing to accept that it is true, but I am not sure that the things that my right hon. Friend has been saying about environmental matters in recent weeks should do anything to discourage us from believing that it is. He really has been setting the pace.

The non-governmental organisations have raised a number of matters. I agree with what they are saying, but I also believe that what we are already doing in the Bill and—much more importantly—our commitments beyond it will meet their expectations. Their concern about the governance gap is entirely justified. There needs to be a new body to reinforce the regulatory standards that we establish.

Significant powers relating to our environment are being vacated by the EU, and we must, as a matter of urgency, ensure that those powers are allocated to either existing or new regulatory bodies. Those bodies must be independent, they must be accountable, they must be accessible to the public who are seeking redress, their processes must be transparent, and they must have teeth so that they can hold Governments and others to account. We all agree on that, and nothing that I have heard from the Environment Secretary suggests that his ambition for legislation on the environment post-Brexit will not deliver those requirements.

[Wera Hobhouse]

Will the hon. Gentleman give way?

[James Heappey]

I will gladly give way to my diocesan neighbour.

[Wera Hobhouse]

Does the hon. Gentleman not agree that the environment does not stop at borders, and that international agreements on environmental protection are vital? The danger that I see is that the UK is going it alone. It is important that we all do this together—and, in fact, we have been doing it together, which is why we have the single market and the European Union.

[James Heappey]

I take the hon. Lady’s point, but I am not sure that the EU is necessarily the only vehicle for the purpose. The Minister for Climate Change and Industry, my hon. Friend the Member for Devizes (Claire Perry), attended the One Planet summit in Paris today, where she talked to representatives from countries all over the world, outside the EU and within, about arresting climate change.

The marine conservation Minister, my hon. Friend the Member for Suffolk Coastal (Dr Coffey), was in Malta six or seven weeks ago at a global UN conference on ocean rescue. Again, that was not an EU vehicle, but the UK was showing leadership among countries around the world. I understand that the Minister for Agriculture, Fisheries and Food, my hon. Friend the Member for Camborne and Redruth (George Eustice), has been at a conference about fishing in the last couple of days, and that the discussion was not EU-orientated but global. I am therefore not entirely convinced that the UK is “going it alone”. We are clearly well embedded in a whole range of international forums in which we can discuss our environmental ambitions globally.

As the hon. Lady rightly said, these are issues that cross borders. However we regulate the environment in the United Kingdom—and I am confident that we will be much more ambitious here than the EU is currently with its own regulations—we cannot turn our back on the rest of the world. Indeed, there is no evidence that we would, given the amount of international engagement that we already have, and the extent of the leadership that we are showing on so many issues relating to the environment and climate change.

I was surprised to note the Scottish National party’s support for new clause 27, in particular. I accept what was said earlier by the hon. Member for Greenwich and Woolwich (Matthew Pennycook) about the intention to establish a regulatory body in England that might seek to be matched in Scotland and Wales, and that agreement would be sought from the devolved powers. However, the Bill refers specifically to a UK-wide regulatory framework. I will gladly give way to any SNP Member who wishes to intervene, but I wonder whether that in some way challenges the SNP’s desire for the greater devolution of powers rather than their centralisation. Why would the SNP support a measure that refers to centralised regulation?

Furthermore, the DEFRA consultation on the new enforcement body must be published urgently. [Interruption.] I will gladly give way.

[Stewart Malcolm McDonald (Glasgow South) (SNP)]

rose—

[The Temporary Chair (David Hanson)]

Order. The hon. Gentleman is supposed to be actually in the Chamber in order to intervene.

20:15

[James Heappey]

As I said, the DEFRA consultation on the new enforcement body must be published urgently; I agree with the NGO community on that, and Members on both sides will want to encourage the Environment Secretary to do exactly that. I also agree that our ambition should be that the new Bill to establish this new body, and to make the UK’s environmental ambitions post-Brexit clear, should be passed through Parliament by March 2019. We will all want some reassurance from the Secretary of State in the near future that that is indeed his ambition.

Earlier, my right hon. Friend the Member for West Dorset spoke at much greater length than I intend to on the detail of this, but he is absolutely right that the Environment Secretary is clearly meeting the ambitions of everybody who is contributing to this debate from an environmental perspective. Some might choose to put their fingers in their ears, say it cannot possibly be so and seek to manufacture disagreement where there is none, but the Environment Secretary—in this Chamber, in the press, in the speeches he has been giving to the environmental community, and in his meetings with NGOs, I believe—has been very clear about what he intends to do.

Seeking to amend the Bill simply for the sake of amending it does not add anything to our ambition for stronger environmental regulations post-Brexit. We can be very confident that the Government are leading us in the right direction on environmental regulation. They are going far further than the EU currently does, and that is the key point: we should see current EU regulation merely as the floor for UK environmental regulation post Brexit, not the ceiling. I am confident that the Secretary of State has every intention of doing that.

[Several hon. Members rose—]

[The Temporary Chair (David Hanson)]

Order. I again remind Members that there is a knife outside my control. Ten Members, possibly 11, wish to catch my eye and time is limited.

[Hywel Williams (Arfon) (PC)]

I rise to speak to amendment 88, tabled in my name and those of my hon. Friends in Plaid Cymru and colleagues from other parties. It would prevent Ministers of the Crown from being able to replace, abolish or modify the functions of EU entities without first laying impact assessments on its effect before both Houses of Parliament. I appreciate that impact assessments are not popular among some Ministers; indeed, the Brexit Secretary made it clear last week that he does not believe in them at all, especially in terms of large-scale changes. It appears that he does not believe in applying a bit of forethought and method; perhaps a wet finger in the wind might suffice, or even the slaughter of white and black cockerels at midnight and the examination of their entrails afterwards. In the interests of clarity, by “impact assessment” I do not mean a sectoral analysis; my definition of impact assessment, as any good dictionary will tell us, is a

“prospective analysis of what the impact of an intervention might be, so as to inform policymaking”.

Beyond the single market and customs union, there are upwards of 45 pan-European agencies that form the basis of our international relations across a range of policy areas. These agencies are intertwined with hundreds of EU programmes designed to progress societal, economic and environmental standards, from ensuring that planes can safely take off and land to the regulation of life-saving medicines.

Clause 7 will allow Ministers to put aside the advances made by our membership of those agencies, regardless of any formal assessment of the impact that action would have on our society, economy and environment. We have already seen the European Medicines Agency abandon the UK and move to Paris, with Amsterdam taking the European Banking Authority, resulting in the loss of over 1,000 jobs. Before being able to replace, abolish or modify any EU entity functions, this place should know exactly how doing so will affect their constituents.

I represent a university constituency, and we have a strong interest in new research and student mobility programmes, and in the agencies through which those programmes operate. For example, Erasmus+ is managed by the Education, Audiovisual and Cultural Executive Agency. There are 2,000 international students in Bangor. Without the participation in the European Commission’s Horizon 2020 scheme, without the continuation of Interreg funding, and without Erasmus+, universities in the UK will lose much of their competitive edge, and my constituency of Arfon will be hit disproportionately hard.

There is a ready-made solution for the Westminster Government as they navigate the labyrinth of Brexit. Norway has negotiated participation in 12 EU programmes and 31 EU agencies. The areas covered include anything from research co-operation and statistics to health and traffic safety. Norway has done this through its membership of the European economic area. It is about time that this Government paid due regard to the impact of their actions in formulating policy, and I therefore urge them to reconsider the issue of EU agencies and the programmes that they facilitate, while they still can.

[Ms Nusrat Ghani (Wealden) (Con)]

Thank you, Mr Hanson, for giving me the opportunity to contribute to this important debate. Speeches on both sides of the Chamber have been technical, detailed and passionate, including the response from the Minister, and I hope to be able to add a few of my thoughts to this measured debate.

Leaving the European Union was never going to be easy. It was inevitable, after 40 years of the EU creeping into every crevice of our daily lives, that Brussels’ overarching bureaucracy would touch every piece of domestic legislation imaginable. Ultimately, the whole point of the Bill is to ensure a clean, smooth Brexit that allows for an orderly transition from inside the EU to out. Transferring EU law to UK law is a mammoth task that requires an enormous amount of bureaucracy to complete. It is simply unfeasible for this Parliament to go through every piece of legislation affected by the EU line by line to approve its transfer into domestic law. I read recently that an individual vote on each of the 20,319 EU laws would take more than 200 days of parliamentary time, and that a debate on every page of those laws would take a similar amount of time. That simply is not feasible. The European Union (Withdrawal) Bill does a bulk copy and paste, ensuring that when we leave the EU in March 2019, our domestic legislation is not caught short. Understandably, deficiencies will arise. Those deficiencies are clearly laid out in clause 7(2), and if we are to ensure an orderly Brexit, they need cleaning up. No Member of this House believes that enough parliamentary time exists to fix all these faults, and that is why clause 7 is so important.

Clause 7 is not, as we often read in the papers, some kind of Tudoresque power grab; nor does it ride roughshod over Parliament. It provides delegated powers to a Minister to fix obscure but consequential deficiencies in legislation for a short period of time. Those delegated powers will never be used to make drastic policy changes. Such changes have always required, and always will require, a Queen’s Speech or primary legislation. It is public and transparent, and it requires a majority vote. The sole purpose and scope of the delegated powers is to ensure that EU law is still operable after the UK leaves the EU. That is what our constituents want: consistency and security. Even those who want us to stay in the EU appreciate why this is so important, as we have heard from Members on both sides of the House, and from those who voted to remain as well as those who voted to leave. The Procedure Committee amendments that were accepted yesterday will create a sifting committee, confirming even more rigidly that Parliament will always have an input.

We are leaving the EU to bring back control to our courts and our Parliament, and clause 7 bolsters this. Ultimately, once we are out, this Parliament, elected by the British people, will be able to go through what we like and what we do not like, in our own time. For those still concerned that clause 7 is some sort of Tory plot designed to wipe away all workers’ rights, subsection 7 makes it clear that, two years after exit day, these powers will no longer exist. There is a sunset clause. Not only that, but Ministers in the devolved Administrations will be able to use the same powers to amend legislation that falls into their catchment. This is further evidence that the Government are committed to a Brexit that works for the entire UK. It will be up to Holyrood, Cardiff and Stormont to choose how to use their increased decision-making powers.

It is vital that the Bill is passed as cleanly as possible, because it is a key component in ensuring that our departure from the EU is orderly. Clause 7 will play a big part in a smooth Brexit. It is not a power grab, and it is not the beginning of the kind of dictatorship that some would argue was taking place when we were inside the EU. We have a responsibility to our public to deliver on Brexit, and we should not delay or protract the process any further. The act of leaving the European Union represents a powerful decision to restore democracy to this Parliament, and I am pleased to support the Bill and to support the public who voted for this in the largest numbers in our country’s history. I hope that my speech was short enough for you, Mr Hanson.

[Stella Creasy]

I have now been in the Chamber for seven hours, apart from a brief sojourn to serve on a statutory instrument Committee related to fish taxes in Scotland, which feels completely apposite given today’s debate. No one is suggesting that there will not be points at which we may want to have a way to amend legislation, but I have concerns about clause 7. I am pleased to follow the hon. Member for Wealden (Ms Ghani) because I have a completely different opinion on what clause 7 offers. This is about so much more than taxes on fish.

It is important that our constituents understand that we are discussing a clause that gives Ministers the ability to introduce legislation when they consider it appropriate. I consider pudding always to be appropriate, but it is not necessarily necessary. This is one of those matters where the wording is crucial. The deficiencies that the Bill identifies are not limited as long as something can be called a deficiency, which is a huge loophole into which Ministers can reach.

The SIs that Ministers can bring in will have the effect of primary legislation—the same as any Act of Parliament—and the legislation can abolish functions of the European Union covering a whole range of issues. It would be a brave, bold, disciplined Minister who is not tempted by those powers. That is what we are discussing tonight. The hon. Member for Wealden suggested that the provisions do not look like a power grab, but they do not give power to the courts; they put power in Downing Street. That is the Opposition’s concern, which my Front-Bench colleagues have so ably set out.

In the time available, I want to explain my particular concerns about the Henry VIII powers and amendment 332, which relates to a good example of what could go wrong. It is clear that the Henry VIII powers are not about taking rights away; they are about sweeping them away. As the House of Lords Constitution Committee said, the use of such powers

“remains a departure from constitutional principle”.

We know from recent years just how often Ministers have been tempted: cuts to tax credits, student maintenance grants, fracking, fox hunting, winter fuel payments, the electoral register and individual voter registration, and legal aid entitlements. Whether or not someone agrees with those policies, they are not fish taxes. They are not minor amendments to existing legislation. They represent major policy changes that the Government pushed through, or tried to push through, using SIs.

Since 1950, over 170,000 statutory instruments have been laid by Departments—2,500 a year. The hon. Member for Broxbourne (Mr Walker), the Chairman of the Procedure Committee, is not in his place, but he was talking about 1,000 SIs resulting from this legislation alone, which is half a year’s worth of work and represents an awful lot of sifting. Only 17 of those 170,000 SIs were rejected. Indeed, the last time that the Commons rejected a statutory instrument was in 1979. The House of Lords has been more robust, having rejected six such instruments, and it has been rewarded with the Strathclyde review.

Amendment 49 is important because it is clear that when Governments have the ability to use SIs in this way, they do so. It is also clear that this House has not been able to exercise a comparable power of check and balance. Even when such SIs are lawful, the Supreme Court has said that they should be challenged in court. As the right hon. Member for Loughborough (Nicky Morgan) said, this Bill is almost a lawyer’s charter.

I want to give the hon. Member for Wealden the example from amendment 332, which covers the elephant in the room during our debates on this Bill and relates to the rights of the British public and of future British citizens around freedom of movement. Freedom of movement has been bandied about as the reason why many people voted for us to leave the European Union. It is a key pillar of the single market—I will be supporting amendment 124 this evening because the single market represents the best deal for all our constituents—but we must address the question what we mean by freedom of movement.

We know that freedom of movement is a right worth fighting for. It means that kids in our communities can work for companies that have bases in Berlin or Rome, and they can be sent there without any hesitation. It means that if someone falls in love with their French exchange partner, they can move to Paris with them or the exchange can come and live here. It means that someone can be one of 4 million students every year who spend a year in another European country benefiting from that kind of education. These are freedoms that our communities are likely to need more options to access in the future, not less. It also means that people have come to our country and helped our NHS. They have brought jobs and investment, and, yes, British citizens have fallen in love with them. Their kids have gone to school with our kids. They are our neighbours, our friends and our family.

All that is now at risk. Whether we voted leave or remain, whether we think the referendum was about freedom of movement or leaving the single market, we should support the idea that Parliament, not Ministers, should make or rewrite decisions if Ministers do not like the outcome of our discussions. It is clear that the failure of the previous Prime Minister to reform freedom of movement does not mean that we should give up these rights without asking about those changes, and that is what amendment 332 would give us as a Parliament the power to do. It would stop clause 7 being used to make that a decision made by means of a statutory instrument.

20:30

It is clear that many different decisions could be made—on whether rules could be put in place to require someone to have a previous job offer before coming to the UK; on whether we could apply an emergency brake, to learn from the Swiss; on whether we could recognise that many of the problems in our labour market are down not to freedom of movement but to exploitative labour practices, and that ending freedom of movement will only make that worse, making migrant workers even more of a target; or on whether training UK citizens to be able to compete in the modern world, rather than blaming immigrants for being better qualified, will give us a better future. The benefits that have come from immigration are worthy of our protection, too, rather than being written out by Ministers behind closed doors.

Amendment 332 is not just about freedom of movement; it is also about refugee rights that we have already heard the Minister say he cannot guarantee. I spent the weekend in Calais talking to people living in the mud, and I do not feel proud that our Government refused to make that guarantee. They are reneging on the Dublin regulations, which is why I support new clause 53, and I wish we would push it to a vote. We saw how the Government treated the Dubs children, and that is how they will treat refugees and our EU citizen neighbours and friends if they can get away with it. That is why clause 7 needs to be amended—to make sure that decisions about anyone’s future come to the House rather than to back offices in statutory instruments.

The debates today about equalities and the environment all reflect decisions about the future of our communities and about the single market. We cannot keep fudging them. We cannot keep kicking the can down the road. We have to give the British people some certainty and clarity about how decisions will be made.

Henry VIII himself argued:

“It certainly strikes the beholder with astonishment, to perceive what vast difficulties can be overcome by the pigmy arms of little mortal man, aided by science and directed by superior skill.”

Let me honest with the Ministers—I do not believe that the pigmy arms of little mortal men and women can be this sifting committee. It is like a turkey voting for Christmas to be held twice a year. This is no resolution to the problems of this Bill. We cannot even force the Government to bring an issue to the House if we believe that they should. Clause 7 stops us rising to the challenge that the Minister set—to overcome these difficulties on behalf of our constituents, no matter how complicated or sensitive the issue might be. I hope that Ministers will not hide behind Henry VIII powers but embrace his call for inquiry and scrutiny, because then this place at its best really can take back control.

[The Temporary Chair (David Hanson)]

Order. If hon. Members do not keep to five minutes now, we will not get every Member in to contribute to the debate.

[Vicky Ford (Chelmsford) (Con)]

It is a great honour to follow the wonderful women from Wealden and Walthamstow in their different speeches this evening. This is not a time to re-argue the referendum debates—they happened last year. This is the time to look forward, not to think about what we have left behind but to think about how we forge new relationships not only with the EU but with its single market and with other parts of the world.

One of the reasons why the Bill and tonight’s discussion is so important is that it is about the way we as legislators intend to act. The rest of the world is watching us, and if we want to have deep, close co-operative relationships with other parts of the world, it is up to us to act in a predictable manner, to be honest and transparent. I am proud that as a Conservative during my time in Brussels I helped the Conservative-led Governments champion the better regulation agenda, which I have mentioned before. It is an agenda that says, “Before you make any changes to law, you consult those who will be affected and you consider the impacts, and you don’t make decisions behind closed doors.” That is why I added my name to amendment 3, as so many different pieces of European legislation would be affected.

The Library mentioned three of those, with one being fisheries, mesh size and fishing nets. Everybody who has been watching “Blue Planet” knows how important protecting our sea is. I am glad that the Library said it would be relatively straightforward to bring that piece of legislation directly into British law. It also talked about the open internet access law, which is fundamental to freedom of speech in a digital age; it deals with whether or not someone’s internet provider can block or throttle content from others. That piece of law will need a number of policy decisions to be made when it is brought from European law into British law.

The Library also mentions the bank capital requirements, which is really boring law—it was five years of my life. It is deeply detailed but really important to our major financial services legislation and will involve policy decisions. So we need to make sure those policy decisions are made in an open and transparent way.

I am very glad that, thanks to the leadership of my hon. Friend the Member for Broxbourne (Mr Walker), the new sifting process has been put in place, not only under amendment 3, but under amendment 393, which the Government now support. I am also pleased that overnight last night they announced they would support a new European scrutiny instruments committee, which will scrutinise the various changes that need to be made to our law in this transposition and bring in expert guidance. We need the expertise of the Treasury Committee to look at changes to banking law and of the Environmental Audit Committee to look at changes to environmental law, because only in that way will we ensure that these details are properly addressed.

Clause 7 is complicated. It says that the Government will only be allowed to deal with “deficiencies”, but the Bill contains no definition of them. We have heard Ministers tonight say that they will look again at this issue of deficiencies and whether they can give more clarity on that. Where a significant policy decision is being made that affects real stakeholders in the real world, we should have affirmative decisions.

There are also confusing powers in the Standing Order on what powers the statutory instrument committee will have. It says that the committee can turn a negative into an affirmative procedure only where a provision is of the type specified in paragraphs 1(2), 5(2) or 6(2) of schedule 7 of the law. When we read those paragraphs, we see that they are actually very limited. So that committee will need to think very hard about the principles of transparency that it wants to engage in, because it is in all our interests to make sure that when we move on to these new agreements—this new legislation—we give certainty not only to those watching us from overseas, but to the many people and businesses that these legal changes could affect.

[Wera Hobhouse]

I rise to speak in support of amendment 124, tabled by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), and new clause 27, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). I am very pleased that she is here to introduce it later on.

What is the biggest long-term issue facing people here in Britain and across the world? It is not Brexit and it is not the world economy; it is climate change and the environment. For decades, we have thoughtlessly exploited our planet, heated the atmosphere and polluted the earth. The price we pay for continuing as before will be enormous.

As part of the European Union, Britain is making progress to tackle climate change. Together, we have signed up to the Paris agreement. Many European laws and regulations, which are our laws, have been a force for good and have nudged the UK towards better environmental protection and better protection for human health. That was possible through the effective enforcement of those laws by EU agencies and the European Commission. The Bill carries with it the risk that we might scrap the commitments we have shared with the EU to go it alone, or to throw in our lot with America or another country.

I want this country to become the greenest in the world. Before I became an MP, I was closely involved in improving how we dealt with our household and commercial waste following the EU landfill directive. Landfill produces a potent greenhouse gas, methane, and diverting landfill waste through recycling, composting and waste reduction is the only way to stop this greenhouse gas getting into the atmosphere. The UK is still one of the worst recyclers in the developed world, according to figures released the other day.

We have a long way to go and would not have gone as far as we have without the EU pushing us in the right direction and the effective enforcement of the European enforcement agencies and the Commission. We have talked for a while today about how the UK has been a leader on particular EU legislation. That is the beauty of the EU: in some areas, we are leaders; in other areas, such as air pollution, other countries have been leaders. Together, we have produced a body of legislation that makes things better for us all. Another example of good EU legislation is how our beaches have been cleaned up following EU directives. British beaches are now 99% clean and safe—that is what the EU has done for us.

The environment is owned by everybody. It is not a person or legal entity that can complain. Private ownership in a deregulated world does not protect the environment. That is why the legal principles that underpin the EU, as well as powerful and independent enforcement bodies, are so essential.

Frankly, I am not reassured by Ministers. The recent Brexit impact assessment debacle or the war of words over regulatory alignment or divergence are prime examples of why we should not be bamboozled by fine words, but keep a watchful, eagle eye on the Government’s every move. The draft animal welfare Bill that has been produced in a panic is not at all reassuring, but rather an example of how all the Government can do in the face of Brexit is to firefight. Indeed, the biggest problem for me is that Brexit has to happen in such an enormous rush, and that there is apparently the need to undo in a few short months the laws, regulations, enforcement, co-operation and partnerships that have evolved over 40 years.

The protection of the environment depends on cross-border co-operation. The environment is not a game of politics. It is the one thing that can either guarantee or endanger our own survival. The next best thing to staying in the EU would be to stay in the single market and the customs union. That alone would protect the high standards for the environment, health, safe employment, consumer protection and animal rights, and the oversight and enforcement of those standards by independent agencies. That is why everybody in the House should support amendment 124, tabled by my right hon. Friend the Member for Carshalton and Wallington, which would ensure that the Bill’s provisions would not undermine EU regulations and their enforcement during the transition period, while we are still operating in the single market.

At the very least, we should set up independent regulatory bodies that are effective and have enough teeth to hold powerful organisations, global companies, industries and individuals to account, and new clause 27 would allow that to happen. Of course, it would be great if we could count on everybody to do the right thing, but experience tells us otherwise. Environmental crimes continue unfettered where there are not powerful laws and powerful enforcement agencies.

Would it not be a tragedy if Brexit meant that we aligned ourselves with Trump’s America, pulling out of the Paris climate change agreement, expanding our fossil fuel industry, undermining our renewable energy industry, trampling over environmental protection laws and sitting idly by as the planet warmed up? Climate change is not “Project Fear”; it is the worrying and brutal reality. I started by saying that climate change is the biggest challenge of our age—bigger than Brexit. What a tragedy it will be if the environment and vital action to tackle climate change are the biggest victims of Brexit.

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Today’s sitting has considered many important amendments on issues that I have long supported. New clause 27 in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas) and amendment 96 in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy) would ensure that we do not fall into a regulatory black hole when it comes to environmental protection. The Secretary of State’s appearance before the Environmental Audit Committee, on which I sit, did not assuage any of our fears in that regard. New clause 53 in the name of the hon. Member for East Worthing and Shoreham (Tim Loughton) focuses on our obligations under Dublin III to help to reunite children and families who have been separated by war or persecution. I support those amendments and hope that they will be pressed to a vote. They are just three of a legion of amendments that show the true cross-party nature of the concerns about this Bill.

20:45

However, my main focus is the Government’s belief that they are authorised to create and exercise a huge range of new delegated powers, which is one of the most concerning consequences of the vote to leave the EU. The House of Lords and leading members of the legal profession have issued multiple warnings that the powers conferred under clauses 7, 8 and 9 are unprecedented, unarticulated and, in principle, unlimited.

In its interim report, the Lords Constitution Committee issued a stark warning that there was a threat that this Bill

“fundamentally challenges the constitutional balance between Parliament and Government”

and would represent an unacceptable transfer of competences to the Executive. I fully appreciate that we must deal with legislating our withdrawal from the EU quickly and robustly. However, lingering uncertainty, ambiguity and inconsistencies can be just as dangerous and damaging to the rule of law and public and business confidence as swift but reckless action.

However, during the referendum, the leave campaign invested a lot of political energy in animating a public conversation about the value of parliamentary sovereignty. In my view, the term “parliamentary sovereignty” functioned throughout the campaign as a cipher through which general anxieties about the accountability of Government were expressed. In a technical sense, of course, advocating parliamentary sovereignty does not automatically place one on one side of a debate concerning the powers of the legislature versus the Executive.

The legislature, the Executive and the authority of the Crown come together to constitute our parliamentary sovereignty. None the less, a major factor in the country’s collective decision to leave the EU was the perception that the interests of the British public were not well served in our relationship with Europe. That was presented as an issue of high principle: we were “taking back control”.

None of the huge volumes of evidence of the EU’s contribution to the UK’s collective welfare came close to challenging this central tenet of the leave campaign’s argument for Brexit, but this is where the sweeping and seemingly all-encompassing powers conferred on the Executive by this Bill begin to look politically suspect. The need to govern a large and complex society makes delegated powers necessary. Policies approved in outline require fine-tuning in their administration. Even the best-laid plans struggle to survive a confrontation with reality, which the Prime Minister came to realise last week in concluding the first stage of the EU exit process.

However, delegated powers have slowly drifted into areas of principle and policy into which they were never meant to stray. Recently, these powers have been used to authorise fracking in national parks and to abolish maintenance grants. These were both matters of principle and “politics proper”; they were not technical details or matters to be worked through in administration.

It should not need to be said, but there are very good reasons why we distinguish the powers and responsibilities of Government. Not everything is a question of efficiency or expediency. The dangers of concentrated powers are well understood. The business of this House is deliberation—it is uniquely suited to that task. The business of the Executive is action. When the power to legislate on matters of principle is passed to the Executive, we threaten to confuse and eliminate important practical and conceptual distinctions between our responsibilities and competences.

Even before the European Union (Withdrawal) Bill came before this House, the Hansard Society had expressed concern about the way in which Parliament deals with delegated legislation, saying that it is completely inconsistent and unsystematic. Today, it warned that the Government’s proposed sifting committee would make little real difference to our scrutiny of EU exit legislation.

The truth is that this Government lack the mandate and integrity properly to confront and debate the issues of principle raised by this Bill. The powers they wish to grant themselves will function only to occlude and conceal their weaknesses and divisions. A minority Government, internally divided, shaken by scandal and high-profile resignations, cannot be trusted with this powerful set of new powers. This withdrawal process will touch on every aspect of British public and private life. It is therefore necessary—as far as is practically possible—that this Chamber confers its full legitimating force to this process. The breadth and scope of delegated authority in this Bill must be curtailed and safeguards introduced to protect existing rights. The power of ministers to create wide definitions when addressing so-called deficiencies must be constrained. New committees ought to be created to scrutinise and challenge delegated powers. This House must have the final say on any ratification of the future legal and political relationship with Europe. When will the Government allow Parliament to take back control, rather than deny us the ability properly to scrutinise legislation?

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Thank you, Mr Hanson, for the opportunity to join hon. Members in their criticism of the extraordinary breadth of the Henry VIII powers contained in this Bill and the inadequacy of existing scrutiny procedures for dealing with them. I welcome the host of amendments that have been tabled by hon. Members to help remedy these concerns.

The right hon. and learned Member for Beaconsfield (Mr Grieve) helpfully identified that there are two different types of amendments that seek to improve the situation. One group seeks to limit the scope of the powers so that they are used only in appropriate circumstances and only for the specific purpose of correcting tightly defined deficiencies. A second group of amendments seeks to enhance our ability to scrutinise the statutory instruments that Ministers will make using these powers. All those ideas are welcome. If several of them were passed this evening, they could make this part of the Bill a little bit more palatable.

I will focus on a third type of amendment that throws up a different issue in relation to clause 7—an issue for which I am not sure we have found the perfect remedy. Rather than limiting the use of Henry VIII powers or strengthening oversight of them, this group of amendments would require that the Government take action to ensure that certain important provisions of EU law can operate effectively after withdrawal. After all, clause 7 expressly anticipates—in fact, the whole thing is premised on the fact—that there will be chunks of retained EU law that will not operate effectively if deficiencies are not prevented, remedied or mitigated.

The express purpose of this Bill is saving and incorporating EU law as it stands on withdrawal day, but this purpose would be undermined considerably if parts of that EU law were allowed, whether by accident or design, simply to fester away uncorrected and therefore unable to operate effectively. It is for those reasons that a number of amendments have been tabled positively requiring action to be taken, including new clauses 62 and 63 on environmental law, amendment 131 on the rights of EU citizens and amendment 385 on European protection orders. I will focus on a similar example—new clause 53.

New clause 53 would require changes to the immigration rules to retain the effectiveness of the Dublin regulation. Dublin III is far from a perfect set of rules, but it has the welcome goal of ensuring that an asylum claim is determined in the most appropriate EU member state. Its most positive feature is the ability for a person who has made a claim in one member state to seek to have that claim transferred and determined by another member state—for example, where a young asylum seeker has a sibling, aunt or uncle in that country. For all the flaws of the Dublin regulation, those provisions are surely worth saving, regardless of how negotiations proceed.

Even though the rules are retained by the Bill in theory, Dublin III would clearly struggle to operate effectively unless corrected under clause 7. To prevent that, new clause 53 is designed to ensure that those powers are used so that “take charge” requests can continue to be made in the UK. Going further, for one limited and vulnerable group, the new clause seeks to bring the definition of family contained in UK family reunion rules in line with the definition of family in the Dublin regulations. It would mean that an unaccompanied child could seek family reunion with a broader group of family members without needing to make dangerous journeys to Europe in order to claim asylum and make a Dublin request. Currently—with the exception of when joining parents—alternative options for unaccompanied asylum-seeking children under the immigration rules are too restrictive and costly. As a result, they are rarely used. As UNICEF makes clear, a failure to take action risks adding to the number of unaccompanied children forced to take dangerous journeys with smugglers and traffickers in order to reach close family in the UK. That is why new clause 53 is so important.

I turn finally to a more general question. For every amendment or new clause that we are debating today requiring that retained and incorporated EU law in a particular area must be corrected using these powers, there will be large swathes of other EU laws where there is no such requirement. The question that occurs to me is: what happens if, by oversight or choice, the Government do not fix those provisions, rendering key measures useless? What are our courts going to do if confronted, for example, by a citizen seeking to establish rights under retained EU law when that retained law is riddled with deficiencies? Is the court supposed to try to make that work? Does the person lose their ability to exercise that right? I do not think that this issue has been touched on in the debate. In short, I wonder whether we still have work to do to find the appropriate and comprehensive solution in this Bill.

Should there be a mechanism, for example, to put Ministers under an obligation or duty to ensure that retained EU laws operate effectively? Should our courts be required to interpret retained EU laws in such a way as to make them operate effectively wherever possible? Should there be a procedure to allow courts to flag up rules they have found cannot operate effectively? More modestly perhaps, do we simply need to require the Government to publish a list of all the deficiencies they have found in retained EU law and to detail what, if any, action they are taking to remedy them? That is, do we require the Government to list not only the statutory instruments they intend to table under clause 7, but what deficiencies they have identified that they are not going to rectify in that way? I am concerned that, without such changes, Parliament’s intention of retaining EU law and an efficient and effective statute book after exit day may not prove as effective as we would wish.

[Caroline Lucas]

I rise to speak to the provisions in my name, and particularly to new clause 27, which I hope to press to a vote later this evening. I apologise to Members for being absent from the debate for a couple of hours while I was in a Committee.

New clause 27 aims to preserve the high level of environmental protection that comes with membership of the EU. As we have discussed tonight, there is a very real risk that Brexit will create a big gap when it comes to the enforcement, in particular, of environmental law and standards in this country. The European Commission’s monitoring of member states’ action to implement and comply with EU law, backed up by the European Court of Justice’s ability to impose effective financial sanctions, have been an absolutely vital driver in pressing for and delivering environmental improvements in the UK. The example of clean air in London is just one case study that makes that point. In the absence of an effective domestic enforcement regime replicating the vital roles and functions currently performed by the Commission and the ECJ, it is difficult to see how the Government can deliver on their manifesto pledge to leave the environment in a better state than they found it.

On day 2 of the Committee, on 15 November, we had a good debate on the case for fully transposing the EU environmental principles into UK law. The debate was ultimately fruitless in terms of amending the Bill, but we heard a great deal from both sides of the Chamber about the importance of the EU environmental principles to the future protection of the environment in this country.

Perhaps most significantly, environmentalists such as myself were encouraged by a rather remarkable double act, with nods and comedic timing, of the right hon. Member for West Dorset (Sir Oliver Letwin) and the Secretary of State for Environment, Food and Rural Affairs. From that, we learned a little more about the Secretary of State’s plan, first announced on 12 November, to consult on a new independent statutory body to

“advise and challenge government and potentially other public bodies on environmental legislation…stepping in when needed to hold these bodies to account and enforce standards.”

More to the point, we were led to believe that the Secretary of State now intends to introduce an environmental protection Bill to establish an environmental protection body with prosecutorial powers and independence from Government that is charged with policing and enforcing a national policy statement incorporating the EU environmental principles.

That amounts to a welcome recognition on the part of the Secretary of State of the risk of an ever-widening governance gap on environmental protection after the UK leaves the EU if there is not a domestic enforcement regime. Taken at face value, it also seems to be an acknowledgment that the new environmental protection body must be absolutely independent of Government; must be prosecutorial and investigatory so that it can hold the Government and other public bodies to account, including through the courts if necessary; and must be robust and durable so that it cannot easily be abolished or have its functions eroded by stealth.

However, what we still do not know is whether this is a concrete plan that will soon be put into practice so as to ensure the protection of environmental standards in the UK from March 2019, or something that the Secretary of State alone ruminates about while in the bath.

[Sir Oliver Letwin]

rose—

[Caroline Lucas]

I am sorry—I love having discussions with the right hon. Gentleman, but I am aware that other people want to speak.

I will come straight to the point. My case is that the right hon. Gentleman wants me to have enough faith in the Secretary of State and in the capacity of this Government to get through a whole new piece of legislation in time. The crux of this debate is whether the rest of the House is prepared to go along with the confidence the right hon. Gentleman demonstrates, or whether we want to have a belt-and-braces approach.

The right hon. Gentleman said earlier that the idea of putting something in the Bill was inelegant. It may well be inelegant, but it is also a belt-and-braces way of making sure that, come the day we leave the EU—if indeed we do—we have all this legislation in an enforceable form on our statute book. If the Government are already saying, “Of course we’re going to do it—why worry?” why would they be so afraid of putting this into the Bill too? I appreciate that it is not elegant, but I would rather be inelegant and effective than elegant and ineffective.

That is why I want to press new clause 27 to a vote. It is a belt-and-braces way of ensuring with absolute certainty that when EU laws are brought into UK law they are properly enforceable and can be properly implemented. I had more to say, but to be fair to others, I will end now.

21:00

[Stephen Kinnock]

I rise to speak to new clause 37, tabled in my name and the names of many hon. Friends.

Before I turn specifically to the detail of the new clause, I would like to summarise the powers and functions of regulatory institutions. In essence, they are: monitoring and measuring compliance with legal requirements; reviewing and reporting on compliance with legal requirements; enforcing legal requirements; setting standards or targets; co-ordinating action; and publicising information. Thus we see that regulatory institutions and agencies play an absolutely central role in the proper functioning of our economy and, indeed, of our broader society. They are, as it were, the traffic lights that keep the traffic flowing around our economy, and the shields that protect our fundamental rights and freedoms.

I turn my attention to the impact that Brexit will have on the vital role that EU agencies currently play. We all know that the transition phase will, in essence, be a carbon copy of the status quo minus our representation in the EU institutions. The problem is that when we leave the EU on 29 March 2019, we will become a third country, and we will be leaving the 52 agencies that currently carry out the tasks and functions that I listed. According to research commissioned by the House of Commons Library, 16 of those 52 agencies have no provision whatever for third country participation and a further 12 allow only for observer or a vague co-operation status. That means that 28 out of the 52 EU agencies have no provision for third country participation. We are therefore facing, at the time of leaving, a yawning and very dangerous governance gap.

The purpose of my new clause is to force the Government to commit to institutional parity, meaning that all powers and functions currently relating to any freedom, right or protection that was exercised by EU agencies should continue to be carried out by an EU agency, be carried out by an appropriate existing or newly established entity or be carried out by an appropriate international entity.

Without UK institutions to take on the job of EU agencies, we will see fundamental rights, protections and regulations being removed by the back door having been rendered unenforceable. This Bill will then not be worth the paper it is written on unless it is backed up by regulatory agencies. The risks are daunting. How will we reassure businesses that wish to invest in our country if we cannot guarantee a predictable and consistent regulatory regime? How will we reassure consumers that our food hygiene standards are up to international standards? How we will we reassure people that our nuclear safety, chemicals or medicines are up to international and European standards? We can do this only if we have strong regulatory agencies to implement the terms of our legislation. I therefore commend new clause 37 to the Committee.

[Chris Stephens]

I wish to speak in favour of amendment 73, which was spoken to by my hon. Friend the Member for Edinburgh East (Tommy Sheppard). The amendment asks that workers’ rights be agreed by the Joint Ministerial Committee and seeks to clarify the role of the committee in this regard. There are three reasons why that should be done. First, there is divergence. Employment law is totally devolved to Northern Ireland; it is partially devolved to Wales, where the Welsh Assembly took the decision—rightly, my view—to amend the worst aspects of the anti-Trade Union Act; but, for reasons beyond my understanding, employment law is not yet devolved to Scotland. Secondly, there is a real concern about the impact on women workers, who would be very vulnerable to roll-back given the history of delivery on these measures, especially as most have been informed by EU directives and law. Thirdly, of course, there is a trust issue. Who would trust a Conservative Government on their commitments to workers’ rights?

The amendment is designed to explore the extent of the Government’s respect for the Joint Ministerial Committee’s role, and the extent to which they intend to use their powers. Either they respect joint working and consultation to achieve the best solutions in a post-Brexit world—in that case, the amendment should pose no challenges—or there is an agenda of bypassing the devolved Administrations at every turn, and shifting power and decision making back to Westminster.

The Henry VIII powers are a constitutional affront, given the secretive nature of their use. Ministers could use them to bypass Parliament, the judiciary and the devolved Administrations, or quietly to reshape the law without scrutiny. When it comes to employment law, I contend that the Government might wish discreetly to reverse particular Supreme Court decisions on, for example, the civil service compensation scheme, workplace consultations and industrial tribunal fees. In the Unison case, the Supreme Court held that the fees order was unlawful as a matter of not only domestic law, but EU law. Given all the cases in which the Government of the day have suffered a reversal of a decision to which they held so strongly that they were prepared to go to the Supreme Court, and in which EU law formed part of the judgment against them, it is not fanciful to think that they might want revisit the issues, especially when it comes to employment law and workers’ rights.

When Brexit fails to deliver the promised economic bonanza, it is logical to assume that a free market, anti-worker party will look to erode workers’ rights to boost profits. I commend to the Committee the TUC paper “Women workers’ rights and the risks of Brexit”. It outlines clearly and in detail the specific threat that Brexit poses to women workers. Legislation and protections have evolved under the protection of EU law, so we are right to be concerned that removing that umbrella will mean that there are stormy days ahead for women workers.

It is not so much that the rights concerning equal pay, maternity and sex discrimination will disappear overnight, but I share the concerns that hard-fought rights will be eroded, particularly if that can be done under the cover of statutory instrument and ministerial diktat. We saw that with the anti-Trade Union Act 2016—not just in the attitudes of Conservative Members in the Chamber, but in the approach to delegated legislation.

[Stephen Doughty]

The point that the hon. Gentleman makes is absolutely right. Is it not also the case that the Government have tried to undermine the Welsh Government’s efforts to protect trade unions by trying to strike down parts of that Act?

[Chris Stephens]

I thank the hon. Gentleman for making that point for me. He is absolutely correct that that is what the Government are trying to do. Statements have been made in the House of Lords, including by the former chair of the European Conservatives and Reformists group in the European Parliament, who has previously called for the scrapping of

“the working time directive, the agency workers’ directive, the pregnant workers’ directive and all the other barriers to actually employing people.”

That was said by Lord Callanan, now a Minister of State at the Department for Exiting the European Union—and the Conservatives ask us to trust them on workers’ rights! I would not trust them enough to send them out for the rolls in the morning. The Tories cannot be trusted on workers’ rights; if they were truly interested in workers’ rights, they would accept the amendment.

[Mr Leslie]

This has been a very important debate. Some may feel that this is a dry issue of constitutional process and ask how it relates to the question of Britain’s role in the rest of the world. However, it is fundamentally important to recognise Ministers’ land grab in attempting to take very sweeping powers, by order—not simply to transpose technical and necessary EU laws into UK law, but potentially to take whole areas of public policy and make changes by regulation with the sweep of a pen.

Anyone who looks at clause 7, the subject of this debate, will see a number of gaping holes that allow Ministers to drive a coach and horses through a whole series of policy areas. They can say that an order is “appropriate”, and that is all they have to prove—they are not “limited” to the areas that are set out.

By the way, the Minister was not even able to describe what the word “appropriate” meant. He was asked to do so in an intervention, and he could not. Ministers have also taken powers, by order, to abolish public services currently undertaken by EU agencies. This is a serious breach of the constitutional principle that Parliament should normally dictate what can be done by the Executive, who are trying to take very many powers.

A lot of amendments have been considered today. I hope that we can vote on amendment 124, because it would make sure that nothing undermines the UK staying aligned with the single market after exit day, which is a very important principle. In her amendment 49, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) deals with some of the Henry VIII powers. Given that there are so many other amendments and I know hon. Members want to prioritise theirs, I beg to ask leave to withdraw my new clause 18.

Clause, by leave, withdrawn.

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.’—(Matthew Pennycook.)

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.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

21:11

Division 63

Ayes: 293

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Labour: 241
Scottish National Party: 33
Liberal Democrat: 12
Plaid Cymru: 3
Independent: 2
Green Party: 1

Noes: 315

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Conservative: 304
Democratic Unionist Party: 10
Independent: 1

21:25

More than eight hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Order, 11 September).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Clause 7

Dealing with deficiencies arising from withdrawal

Amendment proposed: 49, in 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.”—(Yvette Cooper.)

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.

Question put, That the amendment be made.

21:25

Division 64

Ayes: 295

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Labour: 241
Scottish National Party: 32
Liberal Democrat: 12
Conservative: 3
Plaid Cymru: 3
Independent: 2
Green Party: 1

Noes: 312

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Conservative: 301
Democratic Unionist Party: 10
Independent: 1

Amendment proposed: 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,”. —(Tom Brake.)

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.

21:38

Division 65

Ayes: 93

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Labour: 44
Scottish National Party: 33
Liberal Democrat: 10
Plaid Cymru: 3
Conservative: 2
Green Party: 1

Noes: 215

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Conservative: 302
Democratic Unionist Party: 10
Independent: 2
Labour: 1

Amendment proposed: 158, page 6, line 13, after “it”, insert—

“() modify the Scotland Act 1998 or the Government of Wales Act 2006,” —(Stephen Doughty.)

This amendment would prevent the powers of a Minister of the Crown under Clause 7 of the Bill to fix problems in retained EU law from being exercised to amend the Scotland Act 1998 or the Government of Wales Act 2006.

Question put, That the amendment be made.

21:50

Division 66

Ayes: 291

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Labour: 240
Scottish National Party: 32
Liberal Democrat: 12
Plaid Cymru: 3
Independent: 2
Green Party: 1

Noes: 315

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Conservative: 304
Democratic Unionist Party: 10
Independent: 1

Amendment proposed: 25, in clause 7, 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.” —(Matthew Pennycook.)

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

Question put, That the amendment be made.

22:04

Division 67

Ayes: 292

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Labour: 240
Scottish National Party: 33
Liberal Democrat: 12
Plaid Cymru: 3
Conservative: 1
Independent: 1
Green Party: 1

Noes: 314

---

Conservative: 303
Democratic Unionist Party: 10
Independent: 1

11:30

Clause 7 ordered to stand part of the Bill.

The occupant of the Chair left the Chair to report progress and ask leave to sit again (Programme Order, 11 September).

The Deputy Speaker resumed the Chair.

Progress reported; Committee to sit again tomorrow.