European Union (Withdrawal) Bill

(Limited Text - Ministerial Extracts only)

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Joanna Cherry]

The point I am seeking to make is that having vigorously resisted my amendment, which I tabled for the benefit of everybody living in the UK in relation to issues of certainty about the interpretation of retained EU law after exit day, the Government have now conceded some ground—they are going to provide that certainty for EU citizens living in the UK—so why, if it is good enough for EU citizens living in the UK, is it not good enough for UK citizens living in the UK? Perhaps even more importantly—this adds force to my argument—senior members of the judiciary, both current and retired, have very serious concerns that the wording in the Bill as it stands will involve them in having to make political decisions.

In the past few days, we have seen the kind of vicious opprobrium that can be levelled at those who are seen to have made political decisions on the constitution where the EU is concerned, and earlier this year we saw the level of opprobrium directed at senior members of the judiciary for applying the law. The judiciary’s concern, therefore, is very real. I am not here just to advocate for the judiciary; I am here to advocate for democracy, the separation of powers, and the protection of the constitution. I may well have, as my ultimate goal, an independent Scotland with its own written constitution, but as long as Scotland remains part of the United Kingdom I am very interested in preserving UK citizens’ rights and democracy in the UK as a whole and protecting the notion of separation of powers within the constitution.

The Government do not have to take my word for it. They should look very closely at the evidence given to the House of Lords EU Justice Sub-Committee on 21 November. Lord Hope of Craighead pointed out that clause 6(2), as presently drafted, gives them a discretionary freedom rather than an obligation. Lord Neuberger, the former President of the Supreme Court, said:

“Clause 6(2), as drafted—it is a matter for a judge whether, and if so in what way, to take into account a decision of the Court of Justice on the same point in the regulation or directive, rather than in our statute. The problem for a judge is whether to take into account diplomatic, political or economic factors when deciding whether to follow the decision of the CJEU. These are normally decisions for the legislature, either to make or to tell judges what to do. We talked about our system in this country of judges being given a wide discretion, but this is an uncomfortably wide discretion, because a judge will have to take into account, or in some cases will be asked to take into account, factors that are rather unusual for a judge to have to take into account and that have political implications. It would be better if we did not maintain this system of judges being free to take decisions into account if they saw fit, if they were given some guidance as to the factors which they can and cannot take into account. Otherwise we are getting judges to step into the political arena.”

The issue of how the judiciary are to be given guidance on the interpretation of retained EU law arises directly from the wording of schedule 5 and takes us back to the wording of clause 6(2).

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Joanna Cherry]

The Solicitor General is raising his eyebrows at me, but if he looks carefully at schedule 5, as I am sure he has, he will see that it talks about the procedure for interpreting retained EU law. That is why I am revisiting these issues. I am also revisiting them because former Supreme Court judges Lord Neuberger and Lord Hope gave this evidence to the House of Lords after our discussions on clause 6(2) in this House. It is new evidence that the Government really should take away and look at before Report.

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[Joanna Cherry]

I am very grateful to the right hon. and learned Member for Beaconsfield for agreeing with me on this point. I would expect him to do so, because he, like me, will be paying very careful regard to what current senior judges and retired judges are saying.

I would like to conclude by quoting what Lord Thomas said to the House of Lords Committee after Lord Neuberger and Lord Hope had given their evidence. He said that he entirely agreed:

“It will be a very real problem for future judicial independence and the rule of law if this”—

the guidance—

“is not clarified.”

Put briefly, the problem is that leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising the judiciary’s institutional role in the Brexit process, resulting, potentially, in further regrettable attacks on the integrity of UK judges like those we saw earlier this year and last week. I therefore ask the Minister to address this problem before Report. I have no doubt that it will be addressed in the House of Lords, but I think it should be addressed in the elected House. The elected House should sort this out and not leave it to their lordships.

[The Solicitor General]

Given the spirit in which the hon. Member for Nottingham East (Mr Leslie) moved new clause 21, I was anticipating some form of Christmas truce, and that we would perhaps emerge from our trench lines and play football. As the debate went on, however—this is inevitable on such issues—divisions soon emerged. We have had quite a fierce debate on aspects of the policy surrounding our exit from the EU. First, there was the question of when an impact assessment is not an impact assessment. We then—I am not criticising the hon. and learned Member for Edinburgh South West (Joanna Cherry)—started down the road of, in effect, reopening the debate on clause 6(2). I did raise my eyebrows at her. I take the point that there is a link with schedule 5, but she will immediately recognise that the schedule tries to answer the old question of whether the recognition or understanding of EU law for the purposes of judicial interpretation is a question of fact or a question of law. It is a mechanism to an end, rather than the means of interpretation itself, which is of course within clause 6.

[Joanna Cherry]

My point is that, having rightly conceded that it is a question of law, the Government need to address how that law is interpreted by the judiciary.

[The Solicitor General]

I was about to say to the hon. and learned Lady that, tempted though I am to embark on a long debate with her about why it is important that those who criticise clause 6(2) come up with some sensible alternatives, I am conscious that the Mace is under the Table and that this is a debate in Committee on clause 13 and schedule 5. I do, however, commend to her the evidence I gave to the Lords Constitution Committee last week, at which the very questions she raises were asked of me by Lord Judge and Lord Pannick. In discussion with them, I made the point that, for example, a check list of dos and don’ts for judges would not be an appropriate way forward. There was a measure of agreement with that assertion, but inevitably these issues will be considered in the other place. Having said that, I think that she is right to make no apology for airing these matters in this House, because it is vital, on a Bill as important as this, that we, as elected Members, inform the other place that we have not given it cursory examination, but considered it very carefully indeed. To that extent, I am extremely grateful to her.

There have been many interesting and important contributions to the debate, and I urge the Committee to agree to clause 13 and schedule 5. It is good to see the hon. Member for Nottingham East back in the Chamber. I took the spirit with which he moved his new clause to heart, and I hope that I can respond in kind to him, but there is one word that perhaps sums up the debate, and indeed my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who used it himself: sesquipedalian. It is a synonym for polysyllabic, and I am afraid that it is inevitable in such a debate that we will use words of more than two, three or, dare I say, four syllables. I will, however, try to curb my natural inclination to enjoy such diversions and to meet the hon. Gentleman’s argument that we speak in plain English.

On schedule 5, which is the meat of this debate, it is worth reminding ourselves—I say this particularly in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—that we are talking about means of publication and the rules of evidence to be applied. It is important that I gently remind hon. Members of that, lest we start to soar again into the stratosphere of constitutional debate and get unduly worried about the Government seeking to accrue massive power, when really we are talking about, first, how all this information can be presented to the public and, secondly, how the courts should be enjoined to take notice of it.

I will go through the points raised by my right hon. and learned Friend, particularly with regard, first, to paragraph 2 in part 1 on exceptions from the duty to publish. It is important to note that the direction power under paragraph 2(2) does not allow a Minister to make something retained EU law; it is there merely to enable the Government to ensure that legislation that is obviously not retained EU law does not have to be published. We are trying to minimise the potential for confusion, but we have to be realistic. It will not be possible to ensure without exception that only retained EU legislation is published. We do not think—quite properly, in my opinion—that it is the place of the Queen’s printer to make the determination of what such legislation is. That is why the Bill, quite reasonably, gives powers to Ministers to do this instead.

The powers in part 2 are not quite as alarming as might have appeared at first blush. They are clear and limited. The purpose of the creation of new rules of evidence is to allow them to sit alongside existing rules, including those in primary legislation. Importantly, these powers are subject to the affirmative procedure, which ensures a vote in this House. I will give my right hon. and learned Friend two examples of where the power to make a direction under paragraph 2 may be used in respect of all or part of an instrument. The first would concern an EU decision addressed only to a member state other than the UK. For example, the small hive beetle is a particular issue in Italy, and Commission implementing decision 2014/909 concerns certain protective measures with regard to confirmed occurrences of that insect. It is addressed only to Italy and quite clearly should not be published as part of EU retained law.

[Mr Grieve]

I rather assumed that, given the other extensive powers the Government are taking, we would have that deleted before it became retained EU law in the first place.

[The Solicitor General]

As I have said, this is a power of publication. It is important not only that we formally delete it, as my right hon. and learned Friend says, but that we provide that it does not end up in the wrong place and thereby mislead the reader or those who want to find an authoritative source for retained EU law. Another example would be EU regulations that have entered into force but are only partially applicable here immediately before exit day. One example is regulation 2016/2031 on protective measures against pests of plants, which has entered into force. One provision applies now, but the rest will apply in the EU only after exit day. To answer him directly, that is why the power exists.

I shall move on to paragraphs 3 and 4. Paragraph 3, as the keenest Members will have observed, is based on section 3(1) of the 1972 Act, which provides that

“any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law”,

and, of course, when something is a question of law, a court can determine the meaning of that law for its own purposes. Foreign law is normally a question of fact to be pleaded and then proved, often by recourse to expert evidence. Quite rightly, however, we want to allow a question of EU law to continue to be treated as a question of law after exit day, for certain purposes, such as when it is necessary to decide the question of EU law for the purposes of interpreting retained EU law in legal proceedings here.

[Lady Hermon]

Will the Solicitor General take a moment to explain the status of the long preambles to EU regulations and directives? We are taking all this back, so what is their status to be? How will the courts interpret the preambles to regulations and directives that become part of retained EU law?

[The Solicitor General]

Like any other part of a document, it will, of course, have effect. A preamble is an important statement. It is different from, say, an explanatory note or accompanying document—it is part of the measure and therefore will have force. We are seeking to download that documentation and make it part of our domestic law so that when we read it across, people will know that it is part of our domestic law, albeit in that category of retained EU law.

[Lady Hermon]

The hon. and learned Gentleman, like everyone in the House, will be well aware that our legislation does not have long preambles. I think that the judges need further guidance. He has indicated from the Dispatch Box that the preambles will have force. What weight should the judiciary across the UK give to those preambles, as they are not accustomed to them in British legislation? What does “force” actually mean?

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[The Solicitor General]

To be fair to our judges, they already have the task of interpreting and applying EU regulations and all EU legislation that has direct effect. With respect to the hon. Lady, it will not be a new task for them, and I trust Her Majesty’s judges to get it right. As I said in response to the hon. and learned Member for Edinburgh South West, it is tempting for the House to try to set out a list of judicial dos and don’ts, but I do not think that that is an appropriate approach. I trust and respect the judiciary to get this right, as they almost invariably do. They answer the question that is put to them, and deal with it in a robust and independent way. As one of the Law Officers responsible for upholding the rule of law, I am happy to reiterate on the Floor of the House that I have the utmost confidence in our domestic judiciary to get it right.

Paragraph 4 is based on subsections (2) to (5) of section 3 of the 1972 Act. Those subsections distinguish between EU-related matters which are to be judicially noticed—such as EU treaties, judgments of the Court and the Official Journal of the European Union—and other matters which, in theory, fall to be proved to the Court, such as EU instruments. For the latter category, rules are provided about how such matters are to be admissible to our courts. It is worth noting that the power in paragraph 4 to make evidential rules is again subject to the affirmative procedure, as it will be used to replace rules commonly found in primary legislation. I think it is important for all Members to note the context in which these powers are to be used.

[Mr Grieve]

My hon. and learned Friend is giving a very helpful explanation of the powers in paragraph 4. He may agree that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) should listen to it with care. There he was, expressing his great concern about the way in which legislation and EU law was handled in this country—and is still being handled before we leave the EU—but here the Government are replicating the process for when we have left. I am not allowed to speak in French in the Chamber, but plus ça change, plus c’est la même chose.

[The Solicitor General]

My right hon. and learned Friend is not just a lawyer but an historian. He will know that a previous Solicitor General, the late Lord Howe, steered the Bill that became the 1972 Act through the House of Commons. I nod to his memory. He knew what he was about, and he helped to produce an extremely important and effective piece of legislation. I make no apology for replicating aspects of it in this Bill.

Let me reassure the hon. and learned Member for Edinburgh South West that the fact that the provision is in a schedule is not significant. It is on the face of the Bill—in primary legislation—and it receives the same high level of scrutiny that it would if it were one of the clauses. I think it only right that clause 13 is drafted in a general way and there is particularity in the schedule. That is good, modern drafting practice, as I am sure the hon. and learned Lady will acknowledge, given her extensive study of other Bills on which we have worked together.

[Joanna Cherry]

That was not just my concern. It was a concern expressed by the Law Society of Scotland which, as I have said, informed the SNP amendments. May I take up a point made by the right hon. and learned Member for Beaconsfield (Mr Grieve)? These are extremely sweeping powers, but they are tucked away in a schedule.

[The Solicitor General]

I take the hon. and learned Lady’s point with the utmost seriousness, as I hope I always do, but, with respect to her, I think there is no real significance to be attached to the fact that the provision is in a schedule. This is hardly the longest piece of legislation that the House will have seen, but it will certainly be one of the most pored over—and rightly so. The hon. and learned Lady is doing justice to that through her interventions.

Let me now deal directly with new clause 21. Of course I recognise the concerns raised by the hon. Member for Nottingham East, but I do not consider it feasible to impose a statutory duty requiring summaries of all retained direct EU legislation. The scale of that task would be hard to overstate. I have used the word Sisyphean before, and I think that it applies in this case.

According to EUR-Lex, the EU’s legal database, there are currently more than 12,000 EU regulations in force. To impose a statutory duty of requiring plain English summaries of them would, I think, be disproportionate, given that many explanatory materials have already been issued by the EU about EU law—and, indeed, by UK bodies, including the Health and Safety Executive. One example is documentation on the registration, evaluation, authorisation and restriction of chemicals regulations published by the European Chemicals Agency. That measure has been mentioned many times in the Committee. I believe that, at present, the law is accessible.

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[Mr Leslie]

I am grateful to the Solicitor General for addressing new clause 21 in that way, which will be useful to the poor members of the committee that has been given the task of sifting what should and should not be negative statutory instruments. The commitment to provide explanatory memorandums that are readily understandable is very helpful. Dealing with perhaps 12,000 regulations is, of course, a massive task, but does the Solicitor General not agree that that might be one of the unforeseen consequences of Brexit?

[The Solicitor General]

I think that there are many consequences on which the hon. Gentleman and I could dwell on another occasion. The fact is, however, that it is my task to try to ensure, as one of the Law Officers, that the principles of the rule of law to which my right hon. and learned Friend the Member for Beaconsfield referred in his speech—accessibility, clarity and certainty—are adhered to. We will deal with the issues so that we uphold those important principles, which were set out by the late Lord Bingham.

[Lady Hermon]

I am grateful to the Solicitor General for his generosity in giving way again. As he knows, we do not currently have a functioning Assembly in Northern Ireland, so we do not have Ministers who can abide by his direction about explanatory memorandums that will be issued when EU regulations and directives are brought back, in this context to Northern Ireland. Will he confirm that the Departments in Northern Ireland will have an obligation—a duty—to provide explanatory memorandums in that connection?

[The Solicitor General]

I think it must follow that when there is no Executive functioning in Northern Ireland and the Northern Ireland Office is carrying out functions as a substitute for the Executive, the duty will apply to that Department. I assure the hon. Lady that when we introduce statutory instruments, there will be explanatory memorandums from one source or another. Various Departments will have different responsibilities for the drafting and publication of the statutory instruments, and it will be their duty to produce the explanatory memorandums for Members to consider. I cannot envisage an exception being made. Northern Ireland will be covered in the way in which the hon. Lady wants it to be.

Paragraph 1(4) of schedule 5 enables the Queen’s printer to make arrangements to publish documents that may be considered useful in connection with anything else published under the schedule. That, I think, allows for the approach that the hon. Member for Nottingham East is requesting. We are committed to ensuring that the law remains accessible and comprehensible after exit day, and on that basis, I ask the hon. Gentleman to withdraw the new clause, which I think he said was a probing measure. He will have noted my comment, and I understand his position.

Amendments 76 and 77 have been addressed in particular by the hon. and learned Member for Edinburgh South West. Amendment 77 seeks to place the power for a Minister to make provision about judicial notice and the admissibility in legal proceedings of specified evidence of certain matters into the Bill. Judicial notice is a term that covers matters that are to be treated as already within the knowledge of the court, and are therefore not required to be “proved”, as other evidence would be, in the usual way. Amendment 76 would remove that power from schedule 5, while not replacing the provisions that clarify the scope of that power.

The power in part 2 of the schedule covers a limited, technical area, and the affirmative procedure will apply. My worry is that, with the removals that amendment 76 would make, we will lose clarity on how those powers are to be applied. I imagine that the intention of those who support the amendments is that those clarifying provisions would be inserted underneath the power, but I think that we achieve greater clarity by putting them in this schedule in the way that we have, so I respectfully ask the hon. and learned Lady and the other Members who have tabled the amendments not to press them.

Finally, I will deal with amendment 348. It is tempting for me to plunge into the debate about impact assessments and regulatory and sectoral analyses, but this is an amendment about this Bill, of course, and I remind all Members that an impact assessment for this Bill was published when it was introduced. That is in line with the general practice of Governments of different parties in recent years of publishing impact assessments alongside legislation. We want to continue pursuing that approach, but it must be done in a proportionate and appropriate way.

Amendment 348 would impose an open-ended requirement on the Queen’s printer to publish impact assessments, and could, I fear, create a duty it could not meet. The Queen’s printer does not have a responsibility to decide what should be published alongside legislation; it merely publishes what the Government ask it to, and quite rightly so, we might think. At the same time, Ministers have a specific responsibility, endorsed by Parliament, not to release information that would expose our negotiating position. This amendment would risk doing precisely that in a way that would put the responsibility on to a non-ministerial department—the Queen’s printer—which, with respect to it, is in no place to know what analysis is being undertaken, or to make a judgment about what can be published appropriately, safely and proportionately.

In the context of those remarks, I ask the hon. Member for Nottingham East to withdraw the new clause, and I support the passage of clause 13 and schedule 5 and beg that they stand part of the Bill.

[Mrs Moon]

I rise to speak in support of amendment 348 and new clause 21.

Today, I took the short and wide pavements over to the Department for Exiting the European Union; what a waste of my time that was. I went because I wanted to read what was written in relation to the workforce impacts for the large numbers of my constituents from Bridgend who work in the Ford engine factory and with Tata Steel. So I went to look in particular at the automotive sector and the steel sector reports.

The Ford engine plant is the largest engine works in Europe, and Tata next door in Port Talbot employs the largest number of people in steelworks in the UK. It was interesting that when I got there—having gone through the whole palaver of not taking my phone with me and being walked up to the Department, being asked to sign myself in and being handed the two big files—I found that the document started off by telling me what it was not: the first page I had to wade through told me that 58 sectorial impact assessments do not exist. So what I had gone there to see did not exist. Instead I was told that the paperwork consisted of qualitative and quantitative analyses in a range of documents developed at different times since—that is an important word—the referendum, so this was going to be new information: it was going to be information and analysis not available before the referendum and therefore, sadly, not available to the voters in my constituency or indeed to Members.

The 38—not 58—sector documents consist of descriptions of the sector, comments on EU regulations, existing frameworks for how trade is facilitated between countries and sector views. In the end, they are sector views, and nothing the Government had collected together was worth going there to read. They did not contain commercial, market or negotiation-sensitive information, as the documents told me, so why on earth could it all not just have been emailed to all MPs? There was nothing there that would upset anybody; all it would have done was insult people, not worry them. Apart from the sector views, it told us nothing that could not be found from a good read through Wikipedia.

There is no Government impact assessment, or indeed any assessment, even in the one part of the document worth reading: the sectoral view. The sectoral view is just there: the Government do not say what they are going to do about it, or even whether they think it is relevant—they just ignore it.

Sir David, what I was greeted with at DExEU would, in all honesty, have insulted us when we were both serving on the Select Committee on Defence; if that had come to us from the Ministry of Defence, we would have sent it back and said, “Do it again.” It was insulting. Members of the NATO Parliamentary Assembly would have been confused by such pathetic information being placed before them. So perhaps that is why we are not making it public.

I read the report relating to the automotive and steel industries. The report admits that automotive is central to the UK economy and a key part of our industrial strategy, so we would think that the Government would want to make sure that whatever they were going to do would protect it. The industry employs 159,000 people, with a further 238,000 in the supply chain. I did like one line, which said that the UK is a global centre of excellence for engine design, and offered the example of Ford; that is us down in Bridgend. Automotive earns us £40.1 billion in exports, and the EU is the UK’s largest export market, so we would think this is pretty important stuff.

What were the sectoral view and the concerns? Again, there was nothing new; my hon. Friend the Member for Ogmore (Chris Elmore) and I could have written this ourselves. In fact, we could probably have written a better sectoral analysis than anything the Government have produced; it was pathetic.

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

I am happy to tell the Committee that that is the case, as I shall confirm later.

[Sir Oliver Letwin]

I am delighted by that. It is important to people on both sides of the arguments that it be something that Parliament can do, not that Ministers may simply do on their own. I know that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), my south-western neighbour at the end of the Bench, very much agrees with that proposition, as does my right hon. and learned Friend the Member for Beaconsfield in the middle.

--- Later in debate ---

[Mr Baker]

I rise on this eighth day of eight to propose that clauses 14 and 15, 18 and 19 and schedules 6, 8 and 9 stand part of the Bill.

Over the course of the eight days of debate, we have had almost 500 amendments tabled and more than 30 separate Divisions. I am very happy that, in this section of the debate today, the amendments under consideration run to just 39 pages.

[Mr Grieve]

Will the Minister give way?

[Mr Baker]

I did want to make a serious point.

[Mr Grieve]

This is a serious point.

[Mr Baker]

May I make my serious point first, and then give way?

It is sometimes said of this House that it does not scrutinise legislation well and that we send Bills to the other place in a mess. On this occasion, on this historic Bill, I think that the House of Commons has shown itself equal to the task of scrutinising important constitutional legislation. With that, I will very gladly give way.

[Mr Grieve]

I am most grateful to my hon. Friend. What I wanted to say was that, at the start, there was some disquiet over the timetable motion, and, actually, the Government responded positively on that. The evidence suggests to me that, in fact, the timetable has matched the scope of the amendments that we have had to consider, and that is greatly to the credit of the Government that that has happened, and I am very grateful to him for it.

[Mr Baker]

I am very grateful to my right hon. and learned Friend. For all the fire and smoke that we have had over the course of this debate, there has been quite a lot of consensus.

[Wera Hobhouse]

Will the Minister give way?

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[Mr Baker]

No, I wish to move on to my next point.

On this point about consensus, the Government have listened and responded to constructive challenge from all parts of the House. Earlier in the process, the Government tabled amendments to set a single exit day in the Bill, to which I will return. We tabled an amendment to provide extra information about equalities impacts and the changes being made to retained EU law under the powers in the Bill. We have announced the intention to bring forward separate primary legislation to implement the withdrawal agreement and the implementation period in due course. We published a right-by-right analysis of the charter of fundamental rights, and we have made it clear that we are willing to look again at some of the technical detail of how the Bill deals with general principles to ensure that we are taking an approach that can command the support of Parliament.

Finally on this point, the Government have listened to representations set out during debate on day six, and indeed on Second Reading, and have accepted the Procedure Committee’s amendments to establish a sifting committee. We fully recognise the role of Parliament in scrutinising the Bill and have been clear throughout that we are taking a pragmatic approach to this vital piece of legislation. Where MPs and peers can improve the Bill, we will work with them.

[Stephen Gethins]

rose—

[Mr Baker]

Before I move on to the specific clauses and schedules, I will give way just very briefly.

[Stephen Gethins]

The Minister is being very generous. It would be very useful to Members on the SNP Benches if, during his speech, he set out even in principle some of the amendments that were promised by the Secretary of State for Scotland.

[Mr Baker]

As the hon. Gentleman should know, my hon. and learned Friend the Solicitor General promised a Report stage, and we will indeed have that Report stage and we look forward to it.

[Wera Hobhouse]

rose—

[Mr Baker]

I will give way to the hon. Lady; she has been so patient.

[Wera Hobhouse]

I thank the Minister for giving way. He is generous. As a new MP, I must say that I am very surprised about how little constructive dialogue there has been. In fact, the comment that those on the Government Benches could deal with all of this without having to deal with the Opposition was alarming. We are all here to make constructive comments, to improve the Bill and to make compromises. The comments that they could deal with it all without having to listen to the Opposition or to have constructive dialogue were both alarming and disappointing.

[Mr Baker]

The hon. Lady reminds me of how much I miss the days of coalition on some occasions.

The clauses and schedules that we are debating in this final group contain a number of detailed, necessary and technical provisions. In many cases, they are standard provisions that one would expect to see in any Bill.

Clause 14 is a technical and standard provision that sets out important definitions of many key terms that appear throughout the Bill, such as “EU tertiary legislation” and “EU entity”, and clarifies how other references in the Bill are to be read. Clause 15 complements clause 14, setting out in one place where the key terms used throughout the Bill are defined and noting where amendments to the Interpretation Act 1978 are made under schedule 8. Together, clauses 14 and 15 will aid comprehension of the Bill.

Clause 18 provides that the Bill will apply to the whole UK. In addition, because the European Communities Act 1972 currently extends to the Crown dependencies and Gibraltar in a limited way, the repeal of that Act must similarly extend to those jurisdictions to the extent that it applies to them. The Bill also repeals three Acts that extend to Gibraltar, all of which relate to European parliamentary elections. The powers in clauses 7 and 17 can be used to make provision for Gibraltar as a consequence of these repeals. The approach in clause 18 has been agreed with the Governments of Guernsey, Jersey, the Isle of Man and Gibraltar in line with usual practice.

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

Will my hon. Friend give way?

[Mr Baker]

Well, I am going return to the subject of Gibraltar at considerable length later. [Interruption.] I am grateful to my hon. Friend for allowing me to continue.

As is typical with all Bills, clause 19 sets out which parts of the Act will commence immediately at Royal Assent, and provides a power for Ministers to commence other provisions at different times by regulations. Schedule 6 is linked to clause 3, which we debated on day two in Committee. That clause converts into domestic law direct EU legislation as it operates at the moment immediately before we leave the EU. There are, however, some EU instruments that have never applied in the UK—for example, instruments in respect of the euro and measures in the area of freedom, security and justice in which the UK chose not to participate. It would obviously be nonsense to convert these measures into domestic law after we leave, so these exempt EU instruments, to which clause 3 will not apply, are described in schedule 6.

Hon. Members will know that consequential provisions are a standard part of many Acts in order to deal with the effects of the Act across the statute book. Equally, transitional provisions are a standard way in which to smooth the application of a change in the UK statute book. Schedule 8 makes detailed and technical provisions of this nature, all of which are necessary and support the smooth operation of other crucial provisions set out elsewhere in the Bill. It clarifies what will happen to ambulatory references—I will return to this topic—to EU instruments after exit day, makes consequential and necessary amendments to other Acts, and makes transitional provision in relation to the establishment of retained EU law and the exceptions to it. Finally, schedule 9 sets out additional and necessary repeals as a consequence of our exit from the EU.

[Paul Farrelly]

During the Minister’s course through the amendments, has he perhaps noticed new clause 54, which was tabled by the right hon. and learned Member for Rushcliffe (Mr Clarke) following the Prime Minister’s Florence speech? If he has noticed it, what does he think of it?

[Mr Baker]

I am most grateful to the hon. Gentleman for his comments, but I am only just beginning to conclude my opening remarks—I am only eight minutes in. I will come to the new clause in the name of my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) a little later. I will not rush on this occasion.

I turn to amendments 399 to 405 in the name of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin); I am grateful to him for tabling them. I also pay tribute to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and, if I may say so, my hon. Friend the Member for Basildon and Billericay (Mr Baron), who I understand has worked hard behind the scenes to create consensus for these amendments. These amendments are closely linked to amendments 6, 43, 44 and 45, which were discussed on the first day in Committee, and Government amendments 381 to 383.

The Prime Minister has made it clear that the United Kingdom will cease to be a member of the European Union on 29 March 2019 at the conclusion of the article 50 process. The Government have recognised the uncertainty that many people felt as to whether the exit day appointed by this Bill would correspond to the day that the UK leaves the EU at the end of the article 50 process, and that is why we brought forward our own amendments setting out when exit day will be. The purpose of our amendments is straightforward: we want to be clear when exit day is and, in the process, to provide as much certainty as we can to all. In the course of that, we want to align domestic legislation to the international position, as has been set out.

Amendments 399 to 405 build on and complement the Government amendments setting exit day. We have always said that we would listen to the concerns of the House, as we have done throughout the Bill’s passage. As part of that, the Government have had discussions with my right hon. Friend the Member for West Dorset, and we are grateful that he tabled his amendments. They provide the Government with the technical ability to amend the date, but only if the UK and the EU unanimously decide to change the date at which treaties cease to apply to the UK, as set out in article 50.

Only one exit day can be set for the purposes of the Bill, and any statutory instrument amending exit day will be subject to the affirmative procedure. As I said in an intervention, we will bring forward an amendment on Report to make this requirement clear on the face of the Bill.

[Helen Goodman]

Could the Minister set out for the whole Committee—not just the Conservative Members sitting behind him—what will happen if the legislation provided for in amendment 7, which we passed last week, is not passed? The Minister, using amendment 381—whether or not it is itself amended by amendment 400—will still have the power to set the exit date and withdraw, irrespective of what has gone on. Is that not right?

[Mr Baker]

The hon. Lady is trying to pre-empt some of my remarks. If she will bear with me, I will come to that.

A crucial point is that the Bill does not determine whether the UK leaves the EU; that is a matter of international law under the article 50 process. However, it is important that we have the same position in UK law that is reflected in European Union treaty law. That is why the Government have signed these amendments, and I was glad to do so.

I can assure the Committee we would use this power only in exceptional circumstances to extend the deadline for the shortest period possible, and that we cannot envisage the date being brought forward. As my right hon. Friend the Prime Minister has said many times, we and the EU are planning on the UK leaving the European Union at 11 pm on 29 March 2019.

[Mr Jenkin]

I apologise to the Committee for having had to be in the Liaison Committee for the last couple of hours and for missing much of the debate. I thank my hon. Friend for accepting these compromise amendments. The Government are, in fact, accepting a very significant limitation on the powers they had in the original draft of the Bill. If we are interested in the sovereignty of Parliament, we are interested in limiting the room for Government to set arbitrary dates without any controls over them whatever. That is what existed in the Bill before. There is now proper control by Parliament of the date in the Bill.

[Mr Baker]

I am grateful to my hon. Friend. I would also like to say thank you to him for the role he has played in bridging the spectrum of opinion on this issue.

[Helen Goodman]

How can it be right to tell the House that the exit date is being set by the House, when the amendments give the power to the Executive to set the exit date?

[Mr Baker]

It is an interesting question that the hon. Lady asks, but how does she think that exit day would be set by the House? If it is not set on the face of the Bill and immovable other than by primary legislation, it must be set in secondary legislation. I would have thought that that was plain to the hon. Lady. We have done the right and pragmatic thing, which is to align UK law with the international treaty position. That enjoys wide support across a spectrum of opinion, and I am glad to support these amendments in the way I have set out.

Let me turn to the issue of the customs union, and I particularly noted what my right hon. Friend the Member for West Dorset said about it. The issue has been widely aired, and I do not intend to be tempted into a broader debate on trade policy. We are confident that we will negotiate a deep and special partnership with the EU, spanning a new economic relationship and a new relationship on security. Businesses and public services should only have to plan for one set of changes in the relationship between the UK and the EU, so we are seeking a time-limited implementation period during which access to one another’s markets should continue on current terms. During this implementation period, EU nationals will continue to be able to come and live and work in the UK, but there will be a registration system. The details of the implementation period are of course a matter for negotiations, and we have been clear that we will bring forward the necessary implementing legislation in due course. However, it would not be right to sign up now to membership of the customs union and the single market pending the outcome of negotiations, as new clause 52 would have us do.

--- Later in debate ---

[Heidi Alexander (Lewisham East) (Lab)]

The Minister, and the Prime Minister for that matter, repeatedly say that businesses will only have to plan for one set of changes. Given that businesses currently benefit from being part of the single market and the customs union, how can it possibly be the case, as the Prime Minister has also said, that we are coming out of the customs union and the single market during the so-called implementation period?

[Mr Baker]

The hon. Lady tempts me to dilate on the details of the implementation period, which are to be negotiated, but that is not my purpose today, because it is not the purpose of this Bill. The purpose of this Bill is to deliver a functioning statute book as we leave the European Union.

With that in mind, I turn to new clauses 10 and 54 on the transitional or implementation period. Both new clauses seek to impose conditions on what form the implementation period the Government are seeking will take. I am grateful to my right hon. and learned Friend the Member for Rushcliffe for his new clause, which attempts to write the Prime Minister’s vision for an implementation period into statute. That would be a novel constitutional change. Nevertheless, I welcome it in the sense that it is a ringing endorsement of Government policy. New clause 10, however, differs in some key regards from our vision.

The Government cannot accept these new clauses. The Prime Minister has set out a proposal that is now subject to negotiation. We are confident of reaching that agreement, but it would not be sensible for the Government to constrain themselves domestically in any way while those negotiations continue. We are making good progress, and it is in our mutual interests to conclude a good agreement that works for everyone. We do not want to put the legislative cart before the diplomatic horse.

[Mr Kenneth Clarke]

In referring to the transitional or the implementation period, my hon. Friend has at various times used phrases straight out of the Florence speech, and he has accepted that the new clause in my name is identical to stated Government policy on the subject. In what way does it restrain the Government’s position to put their own policy in the Bill and ask the Prime Minister, as the new clause does, to seek to attain that which she has declared to be her objective? That is not a genuine reason for rejecting it. He is rejecting it because agreeing with the Florence speech still upsets some of our more hard-line Eurosceptics both inside and outside the Government.

[Mr Baker]

I pick up my right hon. and learned Friend on a couple of things. First, he has used the word “identical”—I did not use it because I have not taken the time to go through his new clause absolutely word for word to check his work.

[Paul Blomfield]

You haven’t read it!

[Mr Baker]

Of course I have read it—it is here in my hand. I have read it but I have not gone back and done his homework for him to check and mark his work.

I make two points to my right hon. and learned Friend. First, as I said, it would be a constitutional innovation to begin putting statements of policy for negotiations in legislation. That is a good reason not to accept the new clause. The second point—[Interruption.] He says that it is not a good reason. He is the Father of the House and he has occupied many of the great offices of state. I would be interested to know when, in his long and distinguished career, he accepted that principle in legislation.

[Mr Kenneth Clarke]

I have never previously seen members of the Government debate a clear exposition of Government policy from the moment it is first announced. That gives rise to serious doubts about exactly what the Government are going to pursue in the transition deal, and these exceptional and unprecedented circumstances are doing harm to Britain’s position. I cannot see what harm would be done by giving the approval of the whole House to the Government’s stated objectives in the Bill. The fact that it has not been done before is not an argument against it; it answers a situation that has not happened before, either.

[Mr Baker]

My right hon. and learned Friend has caught himself in a contradiction. In this exchange, he has rested his argument on knowing exactly what the Government’s policy is, but in his last intervention he said that he did not know what it was.

My second point concerns subsection (2) of my right hon. and learned Friend’s new clause—[Interruption.] I would just like to make this point. The subsection states:

“No Minister of the Crown shall appoint exit day if the implementation and transition period set out in subsection (1) does not feature in the withdrawal arrangements between the UK and the European Union.”

That would cause a problem if the new clause were accepted and we reached the point at which the treaties no longer applied to the United Kingdom. We would have legal chaos—my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) talked about this earlier—if we had not commenced this Bill when the treaties ceased to apply. For both those reasons, we simply could not accept the new clause.

[Several hon. Members rose—]

--- Later in debate ---

[Mr Baker]

There is a sudden flurry of interest in this point. I will take an intervention from the right hon. Member for Birkenhead (Frank Field), and then I will move on. [Hon. Members: “Ah!”]

[Frank Field (Birkenhead) (Lab)]

Ah! They are like spoiled children, aren’t they?

Is not another objection, if not the real objection, to the point made by the right hon. and learned Member for Rushcliffe (Mr Clarke) that it is the sort of point that should have been made in a Second Reading debate? We have two days for Report and Third Reading. That may be a stage at which the Government wish to look at these things, and it might be a time for huge innovation. Now is not the time to take Second Reading points, which could be dealt with later in the whole proceedings.

[Mr Baker]

I am grateful to the right hon. Gentleman, to whom I gave way because he has tabled relevant amendments about exit day. I hope that today he will feel able to support the Government’s set of related amendments.

[Mr Leslie]

Will the Minister give way?

[Mr Baker]

I will not give way now, because I have been on my feet for 22 minutes, and there are, I think, 53 amendments and new clauses to deal with. I will give way to the hon. Gentleman a little later.

I turn to the long series of amendments that are designed, in one way or another, to oblige the Government to publish reports or assessments on specific areas or issues, some in advance of exit day. They are new clauses 31 to 33, 40 to 44, 46, 47, 71, 72, 82, 84 and 85, and amendments 85, 86 and 219 to 221. It is in no one’s interest for the Government to provide a running commentary on the wide range of analysis that they are doing until it is ready to support the parliamentary process in the established way. All the amendments and new clauses I have mentioned share one common flaw. Ministers have a specific responsibility, which Parliament has endorsed, not to release information that would expose our negotiating position. The amendments and new clauses risk doing precisely that. I commend the excellent speech made by my hon. Friend the Member for Gloucester (Richard Graham), who is in his place. I thought that his speech was an interesting reflection of his own experience.

The risks and difficulties are easily illustrated by looking at some of the specific reports that are called for. New clause 42 asks for a report on severance payments for employees of EU agencies, but that is not a matter for the UK Government. The right to severance pay is a matter for the EU agencies, although we hope and expect that they would honour any relevant commitments to their employees.

New clause 48 calls for a strategy for the certification of UK and EU medical devices by UK bodies so that the UK can maintain a close co-operative relationship with the EU in the field of medicines regulation. That is of course our aim: we intend such a strategy to form a key part of our deep and special future partnership with the EU.

New clause 71, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), seeks to require a Minister to report before exit day on the Government’s progress in negotiating mutual market access for financial and professional services. I understand his motivations in wanting this information to be published. We are working to reach an agreement on the final deal in good time before we leave the EU in March 2019.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Baker]

I want to complete my argument, for the benefit of my hon. Friend the Member for Bromley and Chislehurst, who tabled this new clause.

We are seeking an economic partnership that will be both comprehensive and ambitious. It should be of greater scope and ambition than any previous agreement so that it covers sectors crucial to our linked economies, such as financial and professional services. We are confident that the UK and the EU can reach a positive deal on our future partnership as this will to be to the mutual benefit of both the UK and the EU. We will approach the negotiations in this constructive spirit.

I want to provide reassurance to my hon. Friend on his new clause 72, which seeks to ensure that any ministerial power to charge fees in respect of inspections of imported food and animal feed is exercised in a way that ensures full cost recovery for public authorities.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Baker]

Before I give way to my right hon. Friend, I want to respond on the new clause tabled by my hon. Friend the Member for Bromley and Chislehurst.

I would like to persuade my hon. Friend that his new clause 72 is not necessary. First, there is already sufficient statutory provision to ensure that the cost of mandatory veterinary checks on food and animal feed, on their importation, are fully recoverable. The arrangements for setting inspection fees for imported food and animal feed vary according to the type of inspection. All imports of products of animal origin must be inspected by a port health authority at a border inspection post. For high-risk products not of animal origin, these checks are carried out by a port health authority at a designated point of entry. Broadly speaking, these checks must be satisfactorily completed before a consignment is released for free circulation.

EC regulation No. 882/2004 on official controls, together with supporting domestic legislation—for England, it takes the form of the Official Feed and Food Controls (England) Regulations 2009—provides the legal basis for charges in respect of these inspections. The Bill will convert that EC regulation into UK legislation. The nature of the charges that the port health authority can make depends on a number of factors, including the nature of the food or animal feed being imported and its point of origin.

[Robert Neill]

I am grateful to the Minister for going into such detail on the basis for charging. May I mention that the other purpose behind new clause 72, which is a probing amendment, is to remind the Government of the importance of seeking in our negotiating objectives—no more and no less than that—a continued form of mutual recognition, if at all possible, for checks on food and feed?

--- Later in debate ---

[Mr Baker]

I am grateful to my hon. Friend for that clarification. He will know that, under the WTO foundations of the world trading system, there are arrangements for the mutual recognition of sanitary and phytosanitary checks and other matters.

The second point I should make about my hon. Friend’s new clause 72 is that, in relation to any new inspections that may be required after the UK leaves the EU, the Government are considering what controls or surveillance will be required on imported food once we have left the EU. Where Ministers decide to introduce statutory inspection fees, Parliament should have the opportunity to consider the approach to be taken on a case-by-case basis. Where port authorities undertake additional checks on food, on its importation into the UK, for which there is not a statutory charge, decisions will continue to be taken on the basis of the need to balance costs between general and local taxation. We consider that the Government must remain free to set fees and charges in a manner that reflects these considerations. I hope that this provides my hon. Friend with sufficient reassurance.

Finally, on a separate issue, my hon. Friend asked earlier in our debates whether courts would be able to consider all material in relation to retained EU law when deciding such legislation’s meaning and effect. I am happy to confirm that this is the position under the Bill. The Government will place a letter in the Library of the House setting this out in more detail, and I am putting that on the record now to enable us to do so.

[Robert Neill]

I am grateful for that assurance. There is just one other matter on which I hope my hon. Friend will be able to give me a like reassurance, on private contract matters.

[Mr Baker]

I will. I am about halfway through my remarks. I will come to that.

[Anna Soubry]

I wonder whether the Minister could be quite clear at the Dispatch Box and give an undertaking on behalf of the Government that now we have voted—as we did last week—for amendment 7, the Government will not at any stage now bring forward any measure that in any way undermines the vote of this House on amendment 7, and that Parliament will have a meaningful vote, as we voted for last Wednesday.

[Mr Baker]

I am grateful to my right hon. Friend. I admit, I thought she was going to ask me about the matters before me. That is a matter to be considered on Report, were we to return to it. [Hon. Members: “Ah!”] Opposition Members were shouting me down there for a moment. Were we to return to it, it would be a matter for Report, not for today. The Government’s policy is as we set out in the written ministerial statement, and of course we are a Government—[Interruption.] No, certainly not. We are a Government who of course obey the law. Parliament has voted and the law would currently be set out as on the face of the Bill.

[Stephen Doughty]

Will the hon. Gentleman give way?

[Mr Baker]

I am really not going to take more interventions on this matter, because as I—

[Ian Murray]

rose—

[Mr Baker]

No, I really am not giving way to the hon. Gentleman; I insist.

I turn now to amendment 102, which removes provisions that enable existing powers to amend retained direct EU legislation, and amendment 103, removing provisions that enable future powers by default to amend retained EU legislation. These amendments are linked to amendments that we have already debated on day 2 of the Committee, and I do not plan to repeat all those arguments.

[Ian Murray]

rose—

[Mr Baker]

I will make the argument on this point. We maintain that it is absolutely right and necessary for existing domestic powers granted by Parliament in other Acts to be able to operate on retained direct EU legislation, which will become domestic law. Fettering these powers would prevent important and necessary updates being made to our law, where that is within the scope and limitations of the powers and Parliament’s will. Similarly, it is important that future delegated powers created after exit day should be able to modify retained direct EU legislation, so far as applicable. This provides important clarity on the status of retained EU law and how it will interact with these powers. Further, where it is appropriate to do so, future powers can of course still be prohibited from amending retained direct EU legislation.

[Ian Murray]

Will the Minister give way?

[Mr Baker]

I will, if it is on that set of amendments.

[Ian Murray]

It is very relevant to the amendments that the Minister is currently running through, because the Prime Minister, at the Liaison Committee, has refused to fully commit to abiding by amendment 7, agreed to by this House last week. I wonder whether the Minister would like to comment on that, because if he is rowing back on that commitment he is essentially undermining many of the amendments he is running through at the moment—the one from the right hon. Member for West Dorset (Sir Oliver Letwin) in particular.

[Mr Baker]

What I would say to the hon. Gentleman, and I try to say this as gently as possible and in the spirit of Christmas, is that when I listened to my right hon. and learned Friend the Member for Beaconsfield talking about certain colleagues of a Eurosceptic persuasion, I hope he will not mind me reminding the House that he gave an articulation of—I think he used the word neurosis.

[Mr Grieve]

indicated assent.

[Mr Baker]

He says that he did. I think we need to recognise that as a Government we are trying to make this Bill work, and we have throughout the Bill’s passage worked closely with the House, listened closely to the concerns—

[Anna Soubry]

No you haven’t.

[Mr Baker]

It is a matter of fact that we have stood at this Dispatch Box, we have accepted amendments and we have moved forward with the House on this Bill, accepting amendments and shaping the Bill to comply with the will of the House. I very much regret—

[Ian Murray]

Will the hon. Gentleman give way?

[Mr Baker]

No. I very much regret that on the occasion that is being referred to, we were not able to reach an accommodation, but the Bill is as it currently stands.

[Ian Murray]

rose—

[Mr Baker]

I will not take any more interventions on this point, which is not pertaining to the clauses before us.

[Anna Soubry]

We all know what’s happening

[Mr Baker]

I do take objection—[Interruption.] I do take objection, because what we are going to do is move forward with the Bill as it stands, with the set of concessions that we have included within it, and I would ask my right hon. Friend to accept the good faith of the Government.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Baker]

I am really not going to any more on this point.

Amendments 11 and 380 relate to the treatment of direct EU law for the purposes of the Human Rights Act 1998. I am grateful for the opportunity to discuss this point, which, as my right hon. and learned Friend the Member for Beaconsfield said, is related to his other concerns. The amendments concern the status of retained EU law, in this case specifically the status of retained direct EU legislation under clause 3 for the purpose of challenges under the Human Rights Act 1998.

Let me be clear from the outset that all legislation brought across will of course be susceptible to challenge under the HRA. Hon. Members will, however, understand that the remedies available under the Act differ for primary and subordinate legislation. It is therefore important that the Bill is absolutely clear on this point. Paragraph 19 of schedule 8 is clear. It sets out that this converted EU law is to be treated as primary legislation for the purposes of the 1998 Act, with the result that it will be open to the courts, if that legislation is challenged, to consider whether the legislation is compatible with rights under the European convention on human rights, and, if they conclude otherwise, to make a declaration of incompatibility under section 4 of the HRA.

The amendments, by contrast, would assign the status of subordinate legislation for the purposes of HRA challenges, meaning that a successful challenge could, as my right hon. and learned Friend the Member for Beaconsfield knows, result in a strike-down of the legislation. The Government considered this point very carefully before we introduced the Bill. We recognised the potential arguments that, for example, detailed and technical EU tertiary legislation is more akin to our domestic secondary legislation. We are also, of course, alive to the concerns that this law must be properly challengeable. We concluded on balance, however, that assigning primary status to converted law for these purposes was the better course for three principal reasons.

First, this law comes into our domestic statute book in a unique way, but fundamentally Parliament will have chosen to bring each and all of these pieces of legislation into our law by primary legislation, albeit indirectly through the Bill. Contrary to the position for subordinate legislation, there will have been no exercise of discretion by an individual Minister. In that sense, converted EU law is more akin to primary legislation.

Secondly, if the law could be struck down by the courts, we would risk undermining the certainty the Bill is seeking to provide. None of this legislation can be challenged in UK courts now and some of it has been on the statute book for decades. Opening it up to being struck down is an invitation to challenge law which has long been settled, and to refight the battles of the past in the hope that a different court will return a different verdict.

[Mr Grieve]

Of the three points the Minister has made, the latter is without doubt the one that has the greatest force. It is worth bearing in mind that it highlights the fact of the supremacy of EU law, which is being preserved for the purposes of retained EU law. That, if I may say so, is a good reason why he should listen carefully to what I said about people being able to invoke general principles of EU law in order to challenge its operation. All these matters are interconnected.

[Mr Baker]

I am most grateful to my right hon. and learned Friend. I know he is going to take this matter up further with my hon. and learned Friend the Solicitor General. I did actually just make two points, but perhaps I structured them ambiguously.

The third point is that in the event of a strike-down there would be no existing power under which fresh regulations could be brought forward, so it would be necessary to bring forward a fresh Act of Parliament or to rely on the remedial order-making power within the HRA itself. I should say that the remedial order-making power within the HRA was not designed to be the default means by which incompatible legislation is remedied or to deal with the policy changes that could be required.

The remedial order-making power may only be used if there are compelling reasons for doing so and it is targeted at removing the identified incompatibility. If wider policy change were needed following a finding of incompatibility, a fresh Act of Parliament would be the only means of doing that and we could be left with damaging holes in the statute book unless and until such an Act was passed. That is why the Government concluded that converted EU law should have the status of primary legislation in relation to the HRA, and that is why the Government will not be able to accept the two amendments.

[Mr Jenkin]

I wish to pick up on the important point raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). For the avoidance of doubt, will the Minister clarify that it is not the Government’s intention to set up retained EU law in UK statute in a manner that would encourage a UK court to strike down another primary statute? If that is the intention, may I suggest it might be something the Government will have to look at?

[Mr Baker]

My hon. and learned Friend the Solicitor General has just confirmed to me that we do not want that to happen. I am sure that that will be given further consideration, along with the issue of general principles that my right hon. and learned Friend the Member for Beaconsfield has raised.

[Heidi Alexander]

rose—

[Mr Baker]

I will give way to the hon. Lady, and then I really will move on.

[Heidi Alexander]

I apologise for interrupting the Minister’s stream of thought and taking him back to his response to the right hon. Member for Broxtowe (Anna Soubry) and my hon. Friend the Member for Edinburgh South (Ian Murray), but can he rule out, from the Dispatch Box today, returning to amendment 7 on Report?

[Mr Baker]

I refer to the answer I gave earlier. At this point, I can tell the hon. Lady that I am not expecting to return to it, but we are reflecting on the implications of the amendment. We made a strong case for the powers at the Dispatch Box and are reflecting on it. I say to her, however, and to my right hon. and learned Friend the Member for Beaconsfield that we are not expecting at this point to return to it. [Interruption.] She asks what that means. We have been in close conversation with my right hon. and learned Friend, and I feel sure that those conversations will continue, but I say to the rest of the Committee that I am going to focus on the amendments before me.

[Paul Farrelly]

rose—

[Mr Baker]

If it is on this point, I will not answer the hon. Gentleman.

[Paul Farrelly]

It is indeed on this point. Some of the Minister’s right hon. and hon.—and courageous—Friends from last week have, in good faith, signed amendment 400 this evening. Given that he is refusing to guarantee that the Government will stick to the letter and the spirit of amendment 7, they might feel that they are being led up the garden path.

[Mr Baker]

I did say that I would not answer the hon. Gentleman, but I cannot help saying that I do not remember him complimenting me when I have—occasionally—found myself in the other Lobby.

[John Redwood]

Will the Minister confirm that Parliament is going to have its way? We will have a vote on any agreement, and it will then need primary legislation—the most intense scrutiny of all—to put it through. That, surely, is a major win for those who wanted that approach. I am quite happy with that. That is what amendment 7 leaves us with. Will he confirm that there will be full parliamentary scrutiny, debate and legislation on an agreement?

[Mr Baker]

Yes, I will confirm that of course there will be full parliamentary scrutiny. One of the things that is bringing me great joy, particularly at Christmas, is the extent of parliamentary unity on this point of parliamentary sovereignty. One reason so many of us campaigned to leave the EU is that we wanted our voters to have a choice over who governed the UK in as many matters as conceivable.

I do not wish to revisit the arguments around amendment 7. I wish rather to conclude my consideration of the issue before us.

[Ian Murray]

rose—

[Mr Baker]

I am not going to let the hon. Gentleman come in on this point, which we have dealt with.

I emphasise again that our approach does not immunise converted law from HRA challenges. If an incompatibility were to be found, it places the matter in the hands of Parliament to resolve, without creating a legal vacuum in the interim. This approach strikes the right balance and recognises that supremacy of Parliament. I know that my right hon. and learned Friend has wider concerns regarding the rights of challenge after exit, including, in particular, where these are based on the general principles of EU law. I am happy to repeat the commitment made by my hon. and learned Friend the Solicitor General earlier that we are willing to look again at the technical detail of how certain legal challenges based on the general principles of EU law might work after exit. We will bring forward amendments on Report to address this, and we are happy to continue to discuss these concerns with him.

[Mr Grieve]

That is a very sensible approach on these matters, and I am very grateful to the Minister and my hon. and learned Friend the Solicitor General for taking it forward. As for the other matter that has floated into our discussion, and which I have studiously avoided getting drawn into, I would simply recommend that, on the whole, kicking hornets’ nests is not a very good idea.

[Mr Baker]

It is ironic that my right hon. and learned Friend and I should be constituency neighbours, and, if I may say so—and as we put on the record on a previous day—friends. It is also ironic that our other Buckinghamshire neighbours have swapped one rebel commander for another. But I think I should move on: I have kicked enough hornets’ nests myself for one day.

--- Later in debate ---

[Robert Neill]

I am grateful to the Minister for that assurance, particularly in the light of recent press reports of attempts by the Spanish Government to exclude Gibraltar from the transition and end-state process. It is important for the Government to make that clear commitment, subject, of course, to the existence of the proper regulatory equivalents and standards. If the Minister will give me an undertaking that that will happen with the full involvement of Gibraltar’s Government, I think that those of us who supported the amendment will be satisfied.

[Mr Baker]

I am grateful to my hon. Friend for his positive reaction to our amendment. The situation is as I have described it: our unshakeable objective is to secure the seamless continuation of existing market access to the UK, and to enhance it where possible.

[Ian Paisley]

This is the one amendment that would probably have attracted support from the Democratic Unionists, but, because of the assurances the Minister has given—and, importantly, the assurances the Prime Minister gave even today at the Dispatch Box—we feel relieved for Gibraltar’s sake. Is the Minister essentially saying that the protections he is now affording to Gibraltar effectively mean it will not be treated in any way differently from any other part of the United Kingdom?

[Mr Baker]

The position is as I have set out, and I hope the hon. Gentleman will forgive me if, in all the circumstances, I stick to that position. I hope that he will understand the strength of our commitment from that. We will deliver on our assurances that Gibraltar businesses will enjoy continued access to the UK market, based on the Gibraltar authorities having already agreed to maintain full regulatory alignment with the UK.

[Peter Grant]

I have no doubt that the people and Government of Gibraltar will be grateful for the Minister’s assurances, but the wording of this amendment intends to make sure with 100% certainty that, even inadvertently, nothing in the Bill can damage the interests of the people of Gibraltar. Can the Minister tell us with absolute certainty that if this amendment is not added to the Bill, there is nothing in the Bill that will cause that damage? Assurances, objectives and promises are good, but can he say with absolute certainty that nothing in the Bill will ever damage or prejudice the interests of the people of Gibraltar?

[Mr Baker]

What I can say to the hon. Gentleman is that this Bill extends to Gibraltar only in the way I have set out: the Government’s policy is as I have indicated to him, and we remain steadfastly committed to the interests of Gibraltar.

I turn now to the REACH regulation, new clause 61. We will use the powers in this Bill to convert current EU chemicals law, including REACH, into domestic law. That will mean that the standards established by REACH will continue to apply in the UK. I believe that that renders new clause 61 unnecessary.

On custodial sentences and amendment 349, the scope to create criminal offences in the Bill is restricted so the powers cannot be used to create an offence punishable by a sentence of imprisonment for more than two years. It might, however, be necessary to create criminal offences in certain circumstances, for example offences related to functions that are to be transferred from EU bodies to UK bodies which would be lost without the ability to recreate offences relating to functions then held at a UK level. To lose the offence, and therefore the threat of a sanction, would remove what could be seen as important protections in our law, and for that reason we are not able to support the amendment.

I turn now to amendment 362 on the issue of ambulatory references. I hope the Committee will bear with me on the final, technical section of this speech. The amendment concerns paragraph 1 of schedule 8, which deals with the ambulatory references in our domestic law, as well as EU instruments and other documents in EU legislation that will be retained under clause 3. At present, the ambulatory cross-references update automatically when the EU instrument referred to is amended. After exit day, the Bill provides that such references will instead be read as references to the retained EU law version of the instrument, which, unless the contrary intention appears, will update when the retained instrument is modified by domestic law. This is necessary in order to prevent post-exit changes to EU law from flowing automatically into UK law. It would not be appropriate for the reference to continue to point to the EU version of the instrument after we have left the EU.

The approach set out in the Bill will be applied in relation to ambulatory references within any enactment, retained direct EU legislation, and any document relating to them. I understand that this last provision—the reference to documents and whether or not that includes contracts—has concerned my hon. Friend the Member for Bromley and Chislehurst. The Government are alive to concerns that we should not unduly disturb the operation of private contracts, or prevent parties to a contract from being able to give effect to their intentions. We are happy to explore this issue further with my hon. Friend and interested parties, to ensure that we achieve the appropriate balance between clarity and flexibility.

[Robert Neill]

I am grateful to my hon. Friend and my hon. and learned Friend the Solicitor General for their frank and helpful response in this matter. This issue was raised by the City of London Corporation and the International Regulatory Strategy Group. I thank the Minister for his assurance that he will continue to work with them, and look forward to that. I am satisfied, for these purposes, that the issue is being addressed.

[Mr Baker]

I am grateful to my hon. Friend. My hon. and learned Friend the Solicitor General and I look forward to working with him on this issue.

In conclusion, Sir David—

[Mr Baron]

Will the Minister give way?

[Mr Baker]

I will give way one last time.

[Mr Baron]

May I briefly take the Minister back to amendments 381 and 400? I thank him for his kind words about amendment 400, and for his work on the Bill. He will know that I did not put my name to amendment 381, but I will support amendment 400 so long as that power will be used only in extremis and for the shortest possible time. We have had an assurance on that from the Prime Minister at the Dispatch Box today, and I know that those on the Government Front Bench have taken that on board, but if there is any dissension on this, it would be nice to know about it now.

[Mr Baker]

Perhaps my hon. Friend was not in the Chamber when I gave my assurance on this earlier. I am happy to repeat it. I can assure the House that we would use this power only in exceptional circumstances to extend the deadline for the shortest period possible, and that we cannot envisage the date being brought forward. I think that my right hon. Friend the Prime Minister explained that earlier.

[Ian Murray]

Will the Minister give way?

[Mr Baker]

I did say that that was the last time I would give way, and I think it is now time for me to—[Interruption.] Yes, it is Christmas, and it is in the spirit of seasonal brevity that I would like to turn to the issue of thanks.

I should first like to thank the Committee for its diligent and well-informed scrutiny of this, the first Bill that I have piloted through Parliament. I am an engineer, not a pilot, however, so perhaps I could be said to have guided it through Parliament. It has been my pleasure to do so. I should like to thank you, Sir David, for your chairmanship, and I thank Dame Rosie, Mrs Laing, the other Sir David, Mr Hanson and Mr Streeter for theirs. It has been a pleasure to serve under all your chairmanships. I should also like to thank the Bill ministerial team, whose advice, support and guidance have been absolutely indispensable.

I should like to thank the Solicitor General, my hon. and learned Friend the Member for South Swindon (Robert Buckland), the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Kingswood (Chris Skidmore) and of course the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker). It would be wrong of me to omit the Lord Commissioner of Her Majesty's Treasury, my hon. Friend the Member for Sherwood (Mark Spencer), who unfortunately is not in his place. His occasional guidance to the entire team has been invaluable, and has always been followed.

Finally, and most importantly, I should like to thank all the officials in the Department for Exiting the European Union and beyond who have so diligently risen to the enormous task of dealing with the scrutiny of the Bill. They have guided and assisted Ministers in the preparation of their remarks and they have responded to every query, from the House and from Ministers. We could not possibly have asked for more from them, and they could not have responded more professionally or more energetically. We can be extremely proud of all of the officials who have supported the Bill, as we wish them all a merry Christmas.

[Kate Hoey (Vauxhall) (Lab)]

It is a pleasure to see you in the Chair, Sir David, and it is also a pleasure to follow the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker). I pay tribute to his calmness and tolerance in taking a very difficult Bill through to this stage. I was around when the Maastricht Bill was going through Parliament, and the way in which he has handled this one is a real tribute to him.

I do not always agree with the right hon. and learned Member for Beaconsfield (Mr Grieve), but I agreed with him when he said that the Bill was about process. I am afraid that, perhaps because we have had eight days in Committee, we have widened our debate into areas that should not necessarily have been discussed today. We have rehashed quite a lot of the debate on the referendum. For me, this is a simple Bill about repealing the European Communities Act 1972.

I welcome the fact that there is now general agreement across the House about the date. I am pleased that it will be set out in the Bill because unlike a lot of Members here, but like my hon. Friend the Member for Blyth Valley (Mr Campbell), I do not really trust the EU. I therefore always worry that if we are not absolutely clear about what we are doing, the EU will manage to move things, because it would like to delay the process and punish us as much as possible for taking the brave decision to leave. When we look at what we are discussing, we are simply asking to leave the EU. The British people originally voted for a formal economic agreement, but for 40 years we have seen entanglement and legal procedures getting into our country, and we are now having to go through all this to leave.

--- Later in debate ---

[Ian Murray]

Amendment 7 is incredibly important. That is why I was disappointed that my hon. Friend the Member for Vauxhall (Kate Hoey) did not take an intervention during her contribution. What amendment 7 did last week was to show that this Parliament can speak. It gave power to this Parliament to say that we require a piece of legislation to go through the processes in this House to make sure that this Parliament has spoken when we leave the European Union. The Minister, not unsurprisingly, sought to give assurances to many right hon. and hon. Members on amendments that they have tabled that the Government will do the right thing, but refused—absolutely refused—at the Dispatch Box, on three separate occasions, to give a commitment from the Government that they would abide by the will of this House and abide by amendment 7.

In addition to that, this afternoon the Prime Minister was asked on several occasions at the Liaison Committee to abide by amendment 7, and on all those occasions she refused to give a cast-iron guarantee that the Government will not row back on amendment 7 on Report. That is not taking back control. My hon. Friend the Member for Vauxhall should reflect very carefully on the fact that, whether or not one agrees with the principles of amendment 7 or bringing a piece of legislation through this House to implement the deal, this Parliament has spoken and therefore the Government have a legal, moral and democratic responsibility to abide by that decision and do what this Parliament has asked them to do. To do anything other than that would not just be kicking a hornets’ nest—it would be contemptuous to the hon. Members who walked through the Lobby last week to put amendment 7 into the Bill. If the Government do decide to row back on amendment 7 on Report, that will show that their direction on this Bill, and on removing the UK from the European Union, has nothing to do with the future of this country but is to do with the future of their own party.

The reason that amendment 7 is so important is that it allows this Parliament to have a say. The reason this Parliament needs to have a say—this goes to new clause 54 and, indeed, new clause 13—is that we cannot trust a thing that Ministers say. Their statements contradict all the aspirations that they wish to achieve through this process. Indeed, Michel Barnier has said in the past 48 hours that the red lines that the Government have drawn for themselves contradict the objectives that they wish to achieve from this process. That is why we are tabling new clauses like new clause 13.

I represent a constituency where tens of thousands of jobs, and the entire Edinburgh economy, are reliant on financial services. The head negotiator from the European Union said yesterday that the red lines that the Government have drawn for themselves are completely contradictory to their aspiration to keep passporting and a unique deal for financial services. Tens of thousands of my constituents who rely on jobs or secondary jobs in financial services would look at these reports and say, “If the Government do have the aspiration to keep the financial services passporting arrangements and to keep the financial services sector in the UK healthy, then they should put that aspiration into the Bill.” That is what new clause 54 is seeking to do. If the Government do not do that, my constituents could draw the conclusion that the Government may have to throw some sectors under the bus.

I say that because nothing could be as good as the situation that we have at the moment. We have free and unfettered access for goods and services, free and unfettered access to the customs union, and free and unfettered access to the single market. The aspiration of this Government is to ensure that when we come out of this process, we have exactly the same, if not better, terms than we have at the moment. That is completely and utterly impossible, because the European Union will never agree to the same benefits of the customs union and the single market if we are dealing with it on a separately negotiated basis. That means—this goes to the arguments made by the right hon. and learned Member for Rushcliffe—that when doing individual bilateral trade deals with the US, Australia, India or wherever else, the Government will have to throw some sectors under the bus. Michel Barnier has said in the past 48 hours that the red lines that the Government have drawn and the aspirations they wish to achieve for the financial services sector are contradictory and therefore cannot happen. If the Government refuse to accept any of the amendments, do we draw the conclusion that financial services is a sector that they are willing to throw under the bus?

[Mr Robin Walker]

indicated dissent.

--- Later in debate ---

[Anna Soubry]

Exactly, of course they didn’t. They did not talk about the single market. They did talk about immigration, however, and they thought they pretty much did not like it, even though in Kimberley there have probably been about four immigrants over the course of about 200 years.

We have had that part of the debate, but there is a grave danger in looking at the result of the referendum and saying, “The British people have definitely said they don’t want the single market and the customs union and all the rest of it”. We are leaving the EU, so I have voted to trigger article 50—I have taken that big step against everything I have ever believed in, and I accept we are leaving the EU—but I am not going to stay silent, and I am not going to stop making the case for us to do the right thing as we leave. I gently say to those who stand up and bang on about the devilment of the single market and the customs union that that is gravely insulting to British business.

What have we seen in this peculiar debate? It has been peculiar. I endorse everything my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) and the hon. Member for Nottingham East (Mr Leslie) have said; it must be a Nottingham thing that there is this agreement between the three of us about the merits of the customs union and the arguments made about the Florence speech and why it should be on the face of the Bill.

I also observe that the Government have not really conceded very much at all. They have accepted that there was a real problem with the Henry VIII powers and they have accepted amendments that they pretty much drafted themselves, and they now accept the amendment of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but we must be honest about that: it was an amendment rightly put forward by him, but to solve a problem of the Government’s creation, because they lost the vote on amendment 7. It might be a very good fudge, but we must not make any mistake about it: if it had not come as an idea from the Government, it would not be before us as an amendment—I say that with no disrespect to my right hon. Friend.

The Government have not actually conceded anything at all. They have gone away and said some warm words, but I am now worried and concerned. Last week, 11 very honourable and brave people on this side of the House had to face what some of my colleagues think is just a bit of intimidation. We have seen national newspapers hurling abuse, and putting up photographs almost like “Wanted” posters. In the face of all that and of a lot of strong-arm tactics—I will not go into that here, but those responsible for them know exactly what was going on behind the scenes; let us not pretend otherwise—they voted, in some cases for the first time ever, and in others for the first time in more than 20 years of honourable and loyal service to their party, in accordance with their conscience when they voted for amendment 7.

Today, however, our Prime Minister appears to be rowing back on that, and the Minister is unable to give us an unequivocal statement at the Dispatch Box that the Government will honour amendment 7. Let me make it very clear that if there is any attempt by the Government to go back on amendment 7, the rebellion will be even greater and have even bigger consequences.

[Mr Baker]

I am happy to give my right hon. Friend an early Christmas present. I can give her the following assurance on behalf of the Government. The Government have accepted amendment 7. Our written ministerial statement on procedures for the approval and implementation of the EU exit agreement stands. There will be the following meaningful votes in accordance with that statement: on the withdrawal treaty, and on the terms of the future agreement. There will also be a withdrawal and implementation Bill, which the House will consider in detail, and of course all legislation is amendable.

[Anna Soubry]

I think that that is the unequivocal statement I am looking for. If it is, I am extremely grateful to the Minister for clearing that up. It is indeed a great Christmas present.

It is obvious that the two main parties in this place remain deeply divided, just as the country does. The irony of the situation will not be lost on future generations as they read Hansard. We have a considerable number of hon. and right hon. Members sitting on the Opposition Benches who completely agree with a considerable number of hon. and right hon. Members sitting on these Benches, yet we are prevented from building consensus and finding agreement because of the divisions within the two parties and, it has to be said, some intransigence on our two Front Benches. It is not for me to comment on the state of the Labour party, however; I will leave others to do that.

My right hon. and learned Friend the Member for Rushcliffe has already identified the fact that, 18 months on, we still do not know what the Government see as their endgame. Our own Cabinet remains totally divided on this great issue—the greatest issue that we have had to wrestle with for decades. I say to my honourable and dear colleagues that there are some on these Benches who are entrenched in their ideological view about the European Union and will not move from it. They are a small group—they are the minority—but I feel as though they are running our country, and that cannot be right. Then there is another group, a big wide group of Conservative colleagues. Some of them are reluctant remainers, some are leavers-lite, and as they hear our debates and listen to the businesses that come to speak to them in their constituency offices, they are feeling uneasy and queasy. I do not say that they have to agree with me—of course they do not—but I asked them to listen to the arguments that are being advanced by those of us who speak on behalf of our constituents, notably businesses, about a deal.

We are not going to get a bespoke deal from the European Union—well, not unless we pay shed loads of money for access to this or that market—but there is something available to us. It is EFTA. It is the customs union. It is sitting there as a package. We can take it and seize it, and British business would be delighted if we did so. And then it would be done. The British people would say, “Thank God! They’ve got on and delivered Brexit”, and all would be well. We need to get on with it, so that we can then address the great domestic issues. I beg my hon. Friends to google EFTA and the customs union over the Christmas period. I urge them to understand them and to look at what Norway gets. Norway is able to determine its own agricultural and fisheries policies, for example. My hon. Friends need to know and understand these things. Then we need to come back in the new year and make a fresh start on forming that consensus that our constituents are dying to hear about, because they are fed up to the back teeth with what is going on.

--- Later in debate ---

21:09

Division 81

Ayes: 114

---

Labour: 61
Scottish National Party: 33
Liberal Democrat: 11
Plaid Cymru: 4
Conservative: 2
Independent: 1
Green Party: 1

Noes: 320

---

Conservative: 306
Democratic Unionist Party: 10
Labour: 3
Independent: 1

--- Later in debate ---

21:23

Division 82

Ayes: 319

---

Conservative: 306
Democratic Unionist Party: 10
Labour: 2
Independent: 1

Noes: 294

---

Labour: 243
Scottish National Party: 33
Liberal Democrat: 11
Plaid Cymru: 4
Independent: 1
Green Party: 1

Amendments 381 and 399 agreed to.

--- Later in debate ---

21:36

Division 83

Ayes: 295

---

Labour: 243
Scottish National Party: 32
Liberal Democrat: 11
Plaid Cymru: 4
Independent: 2
Green Party: 1

Noes: 318

---

Conservative: 308
Democratic Unionist Party: 10

Amendments made: 382, page 11, line 24, leave out from “Act” to end of line 32 and insert

--- Later in debate ---

21:51

Division 84

Ayes: 294

---

Labour: 243
Scottish National Party: 31
Liberal Democrat: 11
Plaid Cymru: 4
Independent: 2
Green Party: 1

Noes: 318

---

Conservative: 308
Democratic Unionist Party: 10

--- Later in debate ---

22:05

Division 85

Ayes: 296

---

Labour: 243
Scottish National Party: 32
Liberal Democrat: 11
Plaid Cymru: 4
Conservative: 2
Independent: 1
Green Party: 1

Noes: 316

---

Conservative: 305
Democratic Unionist Party: 10

Clause 15

--- Later in debate ---

22:19

Division 86

Ayes: 23

---

Labour: 9
Liberal Democrat: 9
Plaid Cymru: 4
Green Party: 1

Noes: 319

---

Conservative: 307
Democratic Unionist Party: 10
Labour: 2
Independent: 1

Clause 19 ordered to stand part of the Bill.