European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Tom Brake]

The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there.

I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily.

As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal.

If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be.

I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far.

If we have a vote on clause 1 stand part, I will certainly be ensuring—

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

Will the right hon. Gentleman give way?

[Tom Brake]

I am happy to give way.

[Mr Leslie]

Like the right hon. Gentleman, I am sceptical about clause 1 standing part of the Bill, because it asks Parliament to agree to sweep away the whole body of the 1972 Act without knowing what on earth will replace it. It asks us to embark on that journey without knowing the destination. Conditions should be placed on the repeal of the 1972 Act. For example, we should have a treaty with the European Union before the repeal is allowed to take place.

[Tom Brake]

I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly.

In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.

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Brought up, and read the First time.

[Mr Leslie]

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

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

With this it will be convenient to discuss the following:

Amendment 357, in clause 6, page 3, line 29, at end insert—

“(A1) Retained EU law is to be interpreted in accordance with subsections (A3) to (A7), unless otherwise provided for by regulations under this Act.

(A2) Subsections (A3) to (A7) do not affect the application of section 7 to retained EU law where, but for the operation of those subsections, the retained EU law would fall within that section.

(A3) Retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom.

(A4) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom.

(A5) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State.

(A6) Any provision which requires or would, apart from subsection (A5), require a UK body to—

(a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or

(b) take account of an EU interest,

is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate.

(A7) In subsection (A6)—

‘a UK body’ means the United Kingdom or a public authority in the United Kingdom;

‘an EU body’ means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State;

‘an EU interest’ means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU);

‘requires’ includes reference to a pre-condition to the exercise of any power, right or function.”

This amendment provides a scheme for interpretation of EU law and to provide a backstop where necessary transposition has not been effected by regulations made under Clause 7.

Amendment 279, page 3, line 32, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 303, page 3, line 32, after “Court” insert—

“except in relation to anything that happened before that day”.

This amendment would bind UK courts to European Court principles laid down or decisions made after exit day if they related to an act before exit day.

Amendment 202, page 3, line 33, after “matter” insert—

“(other than a pending matter)”.

Amendment 280, page 3, line 33, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 304, page 3, line 33, at end insert—

“except in relation to anything that happened before that day.”

This amendment would enable UK courts to refer matters to the European Court on or after exit day if those matters related to an act before exit day.

Amendment 137, page 3, line 34, leave out subsection (2) and insert—

“(2) When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

Amendment 281, page 3, line 34, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

Amendment 306, page 3, line 35, leave out from “but” to end of line 36 and insert “a court or tribunal has a duty to take account of anything done by the European Court in relation to—

(a) employment entitlement, rights and protections;

(b) equality entitlements, rights and protections;

(c) health and safety entitlement, rights and protections.”

This amendment would help to ensure that Britain continues to have harmonious social standards with the EU.

Amendment 358, page 3, line 36, at end insert—

“( ) In addressing any question as to the meaning or effect of retained EU law, a court or tribunal must have regard to—

(a) any material produced in the preparation of that law, or

(b) any action taken or material produced in relation to that law before exit day by an EU entity or the EU, to the same extent as it would have had regard to such material or action immediately before exit day.”

The amendment would make clear that non-binding aids to the interpretation of EU law, such as background materials and official guidance produced before exit day, should continue to be taken into account by the courts when interpreting retained EU law to the same extent as at present.

Amendment 278, page 4, line 19, at end insert—

“(6A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of subsections (1) and (2) must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This paving amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 203, page 4, line 20, leave out subsection (7).

Amendment 282, page 4, line 26, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 283, page 4, line 33, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 284, page 4, line 44, after “exit day” insert—

“as appointed in accordance with subsection (6A)”.

This consequential Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Clause 6 stand part.

Amendment 384, in clause 14, page 10, line 36, at end insert—

“‘pending matter’ means any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.

This amendment provides a definition of pending cases for the purposes of Clause 6.

Amendment 353, page 10, line 48, at end insert—

“‘retained case law’ means—

(a) retained domestic case law, and

(b) retained EU case law;”.

Amendment 354, page 11, line 2, at end insert—

“‘retained domestic case law’ means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

‘retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);

‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and so far as they—

(a) relate to anything to which section 2, 3 or 4 applies, and

(b) are not excluded by section 5 or Schedule 1,

(as those principles are modified by or under this Act or by other domestic law from time to time).”

[Mr Leslie]

If we do not have a transitional period after exit day and find ourselves moving to substantially different arrangements and a new set of alliances with member states of the European Union, we may have great turmoil in our economy, with a significant number of jobs moving to other jurisdictions. Most people in this debate—apart from the fabled hardliners on the fourth row back below the Gangway on the Conservative Benches—now accept that a transition is needed. The Prime Minister made that point in her Florence speech. However, if hon. Members look very closely at the Bill, they will see that there really is not much in it about the transitional arrangements. Exactly how it will take place has very much been left up in the air.

New clause 14 seeks clarification from the Government about how a transition will be put in place and operate. It simply calls for a report to be made by Ministers one month after the Bill has received Royal Assent to clarify a number of things. Principally, the report would clarify the question how retained EU law will be interpreted during the transitional period, and by extension, how the relationship with the European Court of Justice and many other aspects will operate during that period.

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

I very much support the new clause, but does the hon. Gentleman share my incredulity at the fact that the Government have not simply said, “Yes, of course we need to inform businesses and regulators about how retained EU law will be reinterpreted during the transition”? It is very odd that they have not recognised that this very basic and self-evident thing needs to be done.

[Mr Leslie]

I suspect that that is because the Government are struggling to get such a transition. They have admitted that one is necessary, which is a good step. In her Florence speech, the Prime Minister made that concession. In fact, it is probably the biggest single negotiating input that we have seen from the Government since the triggering of article 50.

I have been talking to businesses and I know many hon. Members have done so, and we are hearing that if they do not have some clarity by January or February, they will have no choice but to put in place contingency plans for a no deal and the fabled cliff edge that we would reach at the end of March 2019. This goes beyond the financial services issues, because it applies to a number of sectors of the economy. We need to make sure that we have some certainty. That is why so much is on the shoulders of the Prime Minister in the December European Council meeting, when we are told that we might get some movement from the European Union on this issue.

[Stephen Doughty]

My hon. Friend is making an excellent point about the transition. A whole series of amendments have been tabled on this issue, and I wholeheartedly support his new clause. Are the businesses he has spoken to not already having to make very difficult and costly hedging decisions because of the uncertainty caused by the Government and, indeed, the siren call from the small number who want us to go off the cliff into a catastrophic, no deal Brexit?

[Mr Leslie]

There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition.

The Prime Minister pointed out after her Florence speech that the European Court of Justice will

“still govern the rules we are part of”

during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place.

It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement.

What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.

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

The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?

[Mr Leslie]

My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.

I invite hon. Members to turn to page 3 and read clause 5(1), which states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.

[Mr Grieve]

The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.

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[Mr Leslie]

The right hon. and learned Gentleman is entirely correct. The whole purpose of Committee scrutiny is to try to get some sense out of what is a very complicated set of arrangements. In some ways, the Bill was drafted in an era pre-dating the Florence speech, when we were moving from state A to state B—in other words, from pre-exit day to post-exit day. Of course, the Prime Minister has now accepted that there will be a transition, so a new interim period has been floated, but no legal architecture has been proposed for it at this stage.

The Secretary of State for Exiting the European Union yesterday floated the idea of an Act of Parliament that would also include details about implementation at some indeterminate point, potentially after exit day. New clause 14 seeks clarity from Ministers. They must set out in more detail precisely what would happen to the legal framework in that transitional period.

[Helen Goodman]

Does my hon. Friend share my astonishment at the answer to my question this afternoon about what the legal basis for the transition period would be? Does he agree that the Government have succeeded in minimising their room for negotiation by fixing the exit day and maximising legal uncertainty and that the one thing that business has been calling for is legal certainty before Christmas?

[Mr Leslie]

As my hon. Friend says, I am starting to wonder whether the Government will reverse ferret a little bit on the fixed date. We will wait and see—I think the vote will come up on day eight. It is obvious that it has not been as thought through as it should have been.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

My hon. Friend is making some excellent points. Various businesses in my constituency and unions have pointed out the need for, and the benefits of, a transitional period. Does he, like me, feel that because of the Government’s actions we are sleepwalking towards a no-deal scenario that would have a catastrophic impact on our economy?

[Mr Leslie]

I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.

[Mr Jenkin]

I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.

[Mr Leslie]

Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.

[Mr Kenneth Clarke]

Just to reinforce the hon. Gentleman’s question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government’s position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to—it is agreed to by both Front-Bench teams, in theory—would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?

[Mr Leslie]

The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem.

The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

Is it not clear, from what has been said in Europe and by business, that they want the transition deal to be the same as what we have now, with all the same obligations, so that they do not have to go through two sets of changes?

[Mr Leslie]

That is absolutely the preference of most sensible observers. We need a transition, of course, because the trade deal arrangements cannot possibly be made adequately by the time of exit day, unless the Secretary of State for International Trade pulls a rabbit out of the hat—perhaps he has been known to do that in the past, but I doubt it will happen this time. The transition period is therefore vital if the UK is to salvage and stitch together a trade arrangement.

We must not forget, moreover, that the 57 existing free trade arrangements with non-EU countries from which the UK benefits by virtue of our EU membership will have to be grandfathered—copied and pasted into UK arrangements. The right hon. and learned Member for Beaconsfield (Mr Grieve) talked about the 759 different international treaties. We do not know quite how those will apply. We have to think about the legal framework not just after but during the transition. We have a massively complex set of legal steps to take, yet we have no clarity from Ministers, apart from this concession yesterday that there might be a Bill at some point, possibly after exit day, perhaps with a vacuum—

[Mr Robin Walker]

indicated dissent.

[Mr Leslie]

I will give way to the Minister, if he is saying no. If I understand him correctly, he is going to introduce and enact the promised Bill well ahead of exit day. I will give way to him if that is the case.

[Mr Robin Walker]

indicated dissent.

[Mr Leslie]

Well, the Minister proves my point. We need a report from the Government very soon after Royal Assent to answer this question. New clause 14 is a very gentle, soft amendment that I hope will nudge the Government into answering that question.

[Peter Kyle]

A transition implies moving from one place to another. If we write into statute the date on which we are to leave, industry and the economy will wake up the next day and find that we are out of the jurisdiction of the European Court of Justice, out of the customs union and out of the single market. That is not a transition but an overnight crash. The Government say that we will then make a further transition and then pick up the pieces, like the Road Runner hitting the ground and having to pick himself up afterwards. This is not an orderly transition; it is, by any definition, a car crash. Does my hon. Friend not agree?

[Mr Leslie]

Yes. There are massive risks, and if we do not have an orderly transition, there will be big consequences. However, although we have identified 29 March 2019 as a key date, there is another critical date, which will fall in the first quarter of the next calendar year. Many businesses are saying that they must have certainty about what the shape of the transition will be by that time.

The clock is ticking much more swiftly than Ministers may have appreciated. We need to know that they are rolling up their sleeves ahead of the European Council, which begins on 14 December. We may just complete the Committee stage during that week, but it is vital for businesses to have certainty, and it is also vital for Ministers to explain how aspects of the transition will take place. In a way, it would be disloyal to the Prime Minister for them not to do so.

[Mike Gapes]

My hon. Friend has mentioned the concern felt by businesses. That concern is widespread, ranging from the Confederation of British Industry to the Federation of Small Businesses. It is also felt by the workers and their representatives, including the TUC and many individual trade unions. Why on earth are the Government being so stubborn?

[Mr Leslie]

We can only speculate. There was even a suggestion at one point that Ministers had not yet broached the topic of transition with their counterparts in the EU and Michel Barnier. Thankfully the Prime Minister raised it in her Florence speech, and I hope that her Ministers are now getting it under way, but we need more certainty and clarity. There is a serious period—two years plus—during which legal arrangements must be put in place. It is not unreasonable for the House to ask Ministers to clarify the position at the earliest opportunity, and certainly by the time the Bill receives Royal Assent.

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

I want to talk about amendments 303 and 304, which stand in my name, and to return to a matter that I raised on Second Reading. I hasten to add that the amendments relate to a specific constituency case. However, I do not want to air the details; I want to stick to the principles, because the case in itself raises a problem that I would like the Government to have a look at.

As we know, the Bill transfers all EU law into UK law. That will become effective on the day of exit, ensuring that all the rights enjoyed by British citizens today will be available to them after Brexit. Owing to some practical difficulties, however, some rights cannot be transferred easily because they are entirely reliant on the European Court. The right of the individual to sue a member state for damages when the law has been incorrectly applied and has caused them harm is ultimately reliant on the rulings of the European Court, and on a legal precedent that I think many of the lawyers who surround me in the Chamber know as Francovich.

Although the UK courts will deal with such cases, they must refer questions about the interpretation or application of EU law or EU legal principles to the European Court, particularly when the interpretation is unclear and applies to every member state. Such a reference to the Court will occur, for example, when the interpretation of rules pertaining to the application of VAT across the EU is required. After Brexit the UK courts will determine all law, and there will be no references to the European Court.

I want to give the Government an opportunity to ensure that the principle underlying Francovich—the protection of individuals against malfeasance by the state—will develop within the British legal system. In the meantime, however, there is a transitional issue arising from changes in the law that impacts individuals who have already commenced such legal action prior to Brexit, or who might wish to commence such an action after Brexit in relation to an issue that occurred in the period prior to Brexit.

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[Dominic Raab]

I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

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

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I hope that the hon. Member for Nottingham East will agree; I sensed during his speech that he recognised that his new clause has now been rendered redundant by the statement made to the House yesterday by my right hon. Friend the Secretary of State, who made it clear that the Government will introduce primary legislation and implement the withdrawal agreement and the terms of any implementation period.

[Mr Leslie]

rose—

[Dominic Raab]

Let me finish my point.

Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.

[Mr Leslie]

I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?

[Dominic Raab]

I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.

I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.

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[Dominic Raab]

The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty.

My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK.

Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.

[Mr Leslie]

Will the Minister give way?

[Dominic Raab]

I have given way to hon. Gentleman before. I am going to make some progress.

That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.

That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.

--- Later in debate ---

[Sir Oliver Letwin]

Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other.

I feel sure that the reason clause 6(3)(a) says that the court should judge

“in accordance with…any retained general principles”

is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a).

This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),

“not bound by any retained EU case law”,

but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.

[Mr Leslie]

The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.

[Sir Oliver Letwin]

The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.

--- Later in debate ---

[Dominic Raab]

I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.

[Mr Leslie]

I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.

[Dominic Raab]

rose—

[Mr Leslie]

Oh, perhaps I am wrong. I will give way, of course.

[Dominic Raab]

I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.

[Mr Leslie]

Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.

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

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

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

It is a pleasure to follow the right hon. Member for Witham (Priti Patel), who has had a busy few weeks. Brexit must not mean isolationism for the United Kingdom. The right hon. and learned Member for Beaconsfield (Mr Grieve) spoke of a global Britain and globalisation, and we have to recognise that we live in an interconnected world. The right hon. Lady did her duty and played her part at the Department for International Development, helping to save lives and foster that interconnected world. In some ways, she helped Britain and DFID play their part in pooling sovereignty with other countries, working together to make sure that we can deliver positive outcomes internationally.

It is partly in that spirit that I tabled new clause 15, which would make sure that, after Brexit, we stay informed about developments in the European Union and the European economic area. If they depart from our corpus of law and regulations, it is important that we know and are informed about it, and that we keep pace with and are aware of what they are doing. It would be to the advantage of the House of Commons and Parliament in general if we make sure that we know about any EU reforms and any ideas it develops, because ultimately there is a crucial question about our economy and its linkages with our nearest neighbours across the European Union. We cannot just pretend that we are isolated and cut off from them and that we have nothing to do with their economic progress. Our fate and theirs are integrally linked.

It is important that we should have the option of keeping pace with the EU and the EEA, for a number of reasons. We have an integrated economy and we share the EU’s warehouse inventory with regard to many of the goods that are produced and manufactured in this country. The relationship goes beyond hard economics; we have cultural ties and share other interests as well.

If there is a hard-headed economic case, it must lie in the notion of regulatory equivalence. Keeping pace with the way in which Europe develops is ultimately also in the UK’s own economic interests. If we are going to retain trading rights in full with our counterparts across the continent, I believe that the UK’s policy should be to ensure that there is regulatory alignment wherever possible.

It is often said that there are three broad regulatory paradigms in world trade today. The European paradigm effectively follows the precautionary principle when it comes to regulation. The American approach is a much more hard-headed cost-benefit analysis, which of course can often result in different regulations, and the growing regulatory approach of the Chinese is one that we might characterise as expansionist in its own particular way. I personally believe that we need to make a choice. As hon. Members, including my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), have often said, this is not just a matter of negotiation; it is also about the UK having to make a choice of where we are in the world. My view is that our interests are best served by keeping pace and alignment with the precautionary principle approach to regulatory change that exists in Europe. New clause 15 would allow Parliament to stay informed about what is happening on mutual recognition agreements and the accreditation of professional services. This is a dynamic economic area and we have to recognise that we are not entirely on our own.

[Graham Stringer (Blackley and Broughton) (Lab)]

As ever, my hon. Friend makes a rational case, but can he tell me what he would do with extremely damaging and bad EU regulations? I will give him two examples: the electromagnetic field directive stops the use of the scanners in our hospitals and the clinical trials directive is so burdensome that it stops drugs coming on to the market for up to 10 years. Surely he would not want us to be aligned to those regulations, but want us to have better regulations?

[Mr Leslie]

I would want us to shape those regulations, because we are going to be affected by them. If our near neighbours—500 million residents—operate under one regulatory regime, many of our products and services will have to comply with it. It is far better that we are able to take part in the discussion and shape those regulations. In accordance with the Bill, we may leave the EU—if that does come to pass—but if we were part of the European economic area, we may still have a say on some regulatory changes. I understand the point my hon. Friend is making, but my amendment would not tie the UK to every regulatory change that takes place within the European Union; it would simply make sure that Parliament is informed when the European Union branches off and goes in a different direction. We need to know that information so that we can make a choice as laws change. If the EU takes a different route, we may want to consider doing so ourselves. We may not, but we may. That is simply the point I make in new clause 15.

New clause 55, in the name of the right hon. and learned Member for Beaconsfield, and new clause 25, in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), address the issue of retained EU laws. Over 20,000 laws and 12,000 regulations will need to be transposed in some way, shape or form. That is a massive process of change and it is still not clear whether we will convert European laws into primary legislation, secondary legislation or something else entirely. It is sensible to have a schedule that lists retained EU laws and I think the suggestions in the new clauses should be accepted.

It may be that not everything can be changed. If there are modifications via primary legislation, we might want the enhanced scrutiny procedure. When the Minister was pressed on this issue, however, he did not in any way give a proper concession to the points made by Members on both sides of the House. We could face circumstances where the EU laws to be modified affect equal pay, the treatment of workers with disabilities, or race and age discrimination. They were not part of primary or secondary UK legislation, but EU laws that we are going to co-opt. If there is to be a change to the set of rules under which we operate, we need much more clarity on whether it will involve this House of Commons doing it in an affirmative way through an enhanced procedure, or, preferably, through primary legislation.

The Minister needs to do more than just promise to look at this matter on Report, because we may not get a Report stage. We have a Committee of the whole House stage, so unless the Bill is amended there will not be a Report stage. The Minister needs to acknowledge that if we do not have a Report stage, any such assurances are not really worth that much.

[The Solicitor General]

Yes, there will be a Report stage. I can assure the hon. Gentleman of that.

[Mr Leslie]

I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that.

My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU—on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decision”, just will not do.

[Mr Jim Cunningham]

My hon. Friend has listed what we would like to see. Would he also include regional aid, which is very important to west midlands manufacturing industries?

[Mr Leslie]

Regional aid—and the financial side—probably has more to do with the EU, and the Government have to say how they would substitute that. All these policies are much affected by our membership of the EEA. The only things not in the EEA are many of the customs union and trade policy arrangements. If we want a smooth Brexit—a soft Brexit, we might call it—membership of the EEA is by far the better arrangement. Rather than climbing every mountain rebuilding a trade relationship with the EU, as well as reaching all the free trade agreements with the rest of the world, we could retain our membership of the EEA and with it those trading benefits with the rest of Europe, while still being free to make trade agreements with those other countries we could negotiate with. That would be a bite-size way to deal with this change and more effective than having to climb all those mountains simultaneously.

[Mr David Jones (Clwyd West) (Con)]

How could the UK continue to enjoy the trading benefits of EEA membership without being a member of the European Free Trade Association?

[Mr Leslie]

I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.

[Sir Oliver Letwin]

There is a danger in Committee that we get sidetracked into rehashing the whole of the Second Reading debate, and I certainly want to avoid that at all costs. Moreover, I have no basic problems with the structural phrasing of clauses 3 and 4, unlike clause 6, which we debated yesterday and will be discussing further anon.

I want first to put on the record what I think my hon. and learned Friend the Solicitor General, in a helpful series of exchanges with various Members, has already confirmed and then to point out one interaction with clause 6. I understood him to say that at an appropriate point, either on Report or in another place—on Report, I hope—the Government would come forward with some mixture, to be decided, of changes to Standing Orders and changes to the Bill to ensure some process for Parliament to sift, or to have sifted on its behalf and then reported to it, all the proposed amendments to existing EU legislation incorporated or saved under clauses 3 and 4, and indeed any others.

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

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

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

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

With this it will be convenient to discuss the following:

New clause 78—Consequences of leaving the European Union: equality—

“(1) This section comes into force when the power under section 14 to appoint exit day for the purposes of this Act is first exercised.

(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.

(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.

(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—

(a) section 3 (interpretation of legislation);

(b) section 4 (declaration of incompatibility);

(c) section 5 (right of Crown to intervene);

(d) section 6 (acts of public authorities);

(e) section 7 (proceedings);

(f) section 8 (judicial remedies);

(g) section 9 (judicial acts);

(h) section 10 (power to take remedial action);

(i) section 11 (safeguard for existing human rights); and

(j) section 19 (statements of compatibility).

(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—

(a) the application of this section generally, and

(b) in particular, the meaning of discrimination for the purposes of this section.”

This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.

New clause 79—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—

“(1) Notwithstanding the provisions of section 5(1), HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.

(2) Notwithstanding the provisions of section 5(1) and having reported to both Houses of Parliament, HM Government is bound to consider whether it should incorporate amended provisions or definitions into UK law, in order to ensure that the rights of workers and employees in the UK are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.

(3) Such circumstances arising in section 2(2)(d) include but are not limited to—

(a) any future EU Directives relating to family-friendly employment rights; including but not limited to rights for pregnant workers and employees, and those returning from maternity leave,

(b) any future EU Directives relating to gender equality,

(c) the proposed Directive of the European Parliament and of the Council on work-life balance for parents and carers.

(4) Reports presented under subsection (1) must include—

(i) an assessment of how such amendments to UK law would have impacted sex equality in the UK had the UK remained a member of the EU or EEA beyond exit day and

(ii) an assessment of how a failure to implement amended provisions or definitions in UK law will impact the ability of families to combine work and care in the UK and gender equality in the UK.”

This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK laws around family-friendly employment rights and gender equality and their potential impact, as well as committing the Government to considering their implementation. This is to ensure that rights of workers and employees with caring responsibilities, and women’s rights, are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.

Amendment 297, in clause 5, page 3, line 11, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 285, page 3, line 12, after “exit day” insert—

“as appointed for the purposes of this section (see subsection (5A)”.

This paving Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Amendment 298, page 3, line 15, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 299, page 3, line 17, leave out “or rule of law”.

This amendment would remove the reference to a rule of law passed or made before exit day.

Amendment 8, page 3, line 20, leave out subsections (4) and (5).

To allow the Charter of Fundamental rights to continue to apply domestically in the interpretation and application of retained EU law.

Amendment 46, page 3, line 20, leave out subsection (4).

This amendment would remove the exclusion of the Charter of Fundamental Rights from retained EU law.

Amendment 151, page 3, line 26, at end insert—

“(5A) Within three months of the commencement of this section, the Secretary of State must lay before Parliament regulations to create a fundamental right to the protection of personal data.

(5B) A statutory instrument containing regulations under subsection (5A) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

Clause 5(4) of the Bill excludes the Charter of Fundamental Rights from the ‘incorporation’ powers in the Bill. This amendment would require the Secretary of State to replicate Article 8 of the Charter (the Right to Protection of Personal Data) in UK domestic law within three months of the commencement of Clause 5.

Amendment 286, page 3, line 26, at end insert—

“(5A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of this section must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.

Clause 5 stand part.

Amendment 10, page 15, line 5, in schedule 1, leave out paragraphs 1 to 3.

To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law.

Amendment 101, page 15, line 17, leave out paragraph 2 and insert—

2 (1) Any general principle of EU law will remain part of domestic law on or after exit day if—

(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);

(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;

(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or

(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.

(2) Without prejudice to the generality of sub-paragraph (1), the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that sub-paragraph.”

This amendment clarifies that all the existing principles of EU law will be retained within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. It also makes clear that the key environmental law principles in Article 191 of the Treaty are retained.

Amendment 336, page 15, line 17, leave out paragraphs 2 and 3 and insert—

2A (1) Any general principle of EU law will remain part of domestic law on or after exit day if—

(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);

(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;

(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or

(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.

2B Without prejudice to the generality of paragraph 2A, the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that paragraph.

2C For the purposes of paragraphs 1A and 1B the exit day appointed must be the same day as is appointed for section 5(1) of this Act and must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This amendment would retain the existing principles of EU law within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. The freeze date would be at the end of any transitional arrangements.

Amendment 105, page 15, line 21, leave out paragraph 3.

This amendment leave out paragraph 3, thus retaining the right of action in domestic law in relation to general principles of EU law.

Amendment 62, page 15, line 28, leave out paragraph 4.

This amendment would remove the proposal to end rights in UK domestic law after exit day in relation to damages in accordance with the rule in Francovich.

Amendment 139, page 15, line 29, at end insert—

“except in relation to anything occurring before that day”.

This amendment, together with Amendments 140 and 141, would restore the right to obtain damages after exit day in respect of governmental failures before exit day to comply with European Union obligations.

Amendment 302, page 15, line 29, at end insert—

“except in relation to anything occurring before that day.

(2) “Anything occurring before that day” in sub-paragraph (1) shall be taken to mean any action commenced before or after exit day in relation to any act before exit day.”

This amendment would enable actions to be brought under the Francovich rule either before or after exit day if they related to an act before exit day.

Amendment 335, page 15, line 29, at end insert—

“, except in cases whereby the breach of Community law took place on or before exit day.

4A For the purposes of paragraph 4 the exit day appointed must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This amendment ensures that the right to obtain damages if the Government fails to uphold its obligations continues as long as the UK remains under the existing structure of rules and regulation.

Amendment 126, page 15, line 32, after “Rights” insert “or”.

This amendment is consequential on Amendment 62.

Amendment 127, page 15, line 33, leave out

“or the rule in Francovich”.

This amendment is consequential on Amendment 62.

Schedule 1 stand part.

[Mr Leslie]

The measures in this group have a number of things in common, and they relate largely to the rights and freedoms that many of our citizens enjoy, without debate or discussion—they are sometimes taken for granted—but that could well be threatened if we do not get this legislative process right.

Of course, the Bill was supposed to be merely a “copy and paste” piece of legislation. We were told that there were no fundamental changes in Government policy and that it was all very straightforward. The Government said, “We are leaving the European Union and becoming a freestanding United Kingdom, so we will simply cut and paste all the EU regulations and laws as they stand into UK law.” However, you will notice, Mrs Laing, particularly in schedule 1, that a number of things are not to be transposed. The Government have specifically chosen not to bring across the charter of fundamental rights.

[Sir Desmond Swayne (New Forest West) (Con)]

When I was sitting in the hon. Gentleman’s place, Labour Ministers told us that the charter would have no more influence in the United Kingdom than a copy of “The Beano”—those were the words used—because it would not apply here. Does he not look forward to a time when what Labour Ministers say will bear a greater approximation to truth?

[Mr Leslie]

It turns out that the charter does have value, and it certainly does have effect within the UK. I will shortly give some practical examples to show how we cannot simply airbrush this part of our current legislative framework. Many citizens, companies and organisations recognise the value that the charter brings.

[Hilary Benn (Leeds Central) (Lab)]

Is not an example of the use of the charter of fundamental rights the one given by our right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) when he referred to the case that the EU brought against the Government, in which the current Secretary of State for Exiting the European Union, as part of his argument, prayed in aid the charter. If the Secretary of State thinks that it has use, should not that same use be available to everybody else?

--- Later in debate ---

[Mr Leslie]

Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.

[Mr Leslie]

Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.

[Kate Green (Stretford and Urmston) (Lab)]

Does my hon. Friend agree that one advantage of the new clause is that we could explore properly the impact of losing the access that the charter gives to UN conventions, for example on the rights of persons with disabilities and on the rights of the child, which currently are not fully incorporated into UK law? We will therefore lose the way in which they are currently accessible through the charter.

[Mr Leslie]

Indeed. We need a far more detailed analysis from Ministers of the consequences of deleting the charter of fundamental rights, which are potentially myriad and far ranging. I pay tribute to my hon. Friend for her tireless campaigning on children’s rights. She has tabled several amendments in relation to the UN convention on the rights of the child, and she will know that many non-governmental organisations that campaign for children’s rights, the Children’s Society in particular, have several anxieties about the deletion of the charter of fundamental rights and the lack of clarity that would exist around protecting children, who are sometimes in vulnerable circumstances.

--- Later in debate ---

[Mr Leslie]

People will have many legitimate anxieties. We cannot simply erase a provision that currently has legal effect and provides legal protections without a statement from Ministers about the effect that that could have in law.

[Sir William Cash (Stone) (Con)]

rose—

[Mr Mark Harper (Forest of Dean) (Con)]

rose—

[Mr Leslie]

What a choice. I will give way to the hon. Member for Stone (Sir William Cash).

[Sir William Cash]

One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves.

[Mr Leslie]

In no way would I wish to diminish the hon. Gentleman’s contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.

[Wes Streeting (Ilford North) (Lab)]

Does my hon. Friend agree that this is about not just the application of the charter of fundamental rights in British law, but the message that we send to the rest of the world? That goes to the heart of the problem with the so-called British Bill of Rights. There are no British rights; there are universal human rights. That is the message that this Government and our continent should send to the rest of the world and to places where people do not enjoy those human rights, which should be inalienable.

[Mr Leslie]

My hon. Friend makes a good point. If the Bill contained a provision to copy and paste many of the charter’s general rights into UK law to preserve the current arrangements, the Government would have a reasonable case to make, but there is no alternative provision. The legislation simply deletes the charter of fundamental rights.

[Mr Harper]

I have two points. First, when the charter of fundamental rights was introduced, it was said that it simply restated existing rights that were elsewhere in European Union law. Secondly, the argument that if rights are not given to us by the EU, we in Britain could not somehow manage to create them ourselves is utter nonsense. We are signed up to the European convention on human rights, we have the Equality Act 2010, and we are a signatory to many UN treaties. The notion that if we somehow do not adopt new clause 16, we somehow do not have any human rights is offensive nonsense.

[Mr Leslie]

It might well be the case that Parliament could salvage many of the protections over time and put them on our statute, but the Bill seeks to delete the charter of fundamental rights from the point that the legislation is enacted. In other words, it would take away rights that we hope may eventually be replaced, but there are none of the guarantees that we currently enjoy by virtue of our membership of the charter.

[Anna Soubry (Broxtowe) (Con)]

As an old lawyer who enjoyed jurisprudence, I know that our laws and rights come from many different sources. I am an old common lawyer, so I actually do not like stuff being written down too much; I like things to develop over time. I would really need persuading about new clause 16, because it just asks for a report, which seems awfully wet.

[Mr Leslie]

I was trying my best to offer a hand of friendship across the Chamber and to say, “Let’s meet halfway and find a way of forging a consensus.” If the right hon. Lady wishes, there are other amendments today that ask for the charter of fundamental rights to be kept. I will certainly be voting for those, but she obviously knows that I would like to find a way, in the spirit of compromise, of reaching a consensus. I agree that a report is only a small step in that direction—hence the drafting of new clause 16—but I am massively impressed by her strength of commitment to the protection of rights in our country.

[Chris Bryant (Rhondda) (Lab)]

One of the differences between the charter of fundamental rights and the European convention on human rights lies in article 8 of the charter, which relates to the protection of personal data. Is it not a particular irony that the Secretary of State for Exiting the European Union relied on precisely that provision to sue the British Government?

[Mr Leslie]

It is probably time to elaborate on that example, because the Secretary of State—for it is he—sued the then Home Secretary, who hon. Members will know is now Prime Minister, to challenge the Data Retention and Investigatory Powers Act 2014 as being inconsistent with EU law. The Secretary of State himself used the argument in court that the charter of fundamental rights needed to be prayed in aid in that case. By the way, he was successful at that point in time.

[Victoria Prentis (Banbury) (Con)]

As a Government lawyer at the time, I was honoured to present that case on behalf of the Government. My real worry about bringing the charter of fundamental rights into English law is that it is too complicated and does not add sufficient rights. Everybody in the House is in favour of the rights in the European convention on human rights that have been incorporated into English law. We are very keen on those and want to protect human rights, but we do not feel that the charter adds sufficient rights to take us much further, and we found that in an enormous number of arguments during that court case.

[Mr Leslie]

I have no reason to question the hon. Lady’s capabilities in court, and I am in no way saying that she was a loser in that particular case, but the charter is not complicated. The rights are simple and clear. For example, “Dignity” covers the right to life and to freedom from torture, slavery, the death penalty, eugenic practices and human cloning. “Freedoms” covers liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum. Other freedoms relating to “Equality” include the prohibition of all discrimination, including on the basis of disability, age and sexual orientation, and cultural, religious and linguistic diversity. “Solidarity” includes the right to fair working conditions, and protection against unjustified dismissal. Other rights include “Citizen’s Rights” and matters relating to “Justice”. Those are simple, important rights.

[Several hon. Members rose—]

[Mr Leslie]

I will give way to my hon. Friend the Member for York Central (Rachael Maskell)

[Rachael Maskell (York Central) (Lab/Co-op)]

I agree with the right hon. Member for Broxtowe (Anna Soubry) that we need more than a report; the rights should be enshrined. On article 25 and the rights of older people, does my hon. Friend agree that having limited protections for older people at a time when so many older people need, but cannot get, things such as social care means that we need to enshrine those rights?

[Mr Leslie]

My hon. Friend is correct. While we have powers on the statute and while rights accrue from case law and court conclusions, the charter of fundamental rights fills many of the gaps, particularly in certain circumstances.

[Stephen Timms (East Ham) (Lab)]

rose—

[Mr Leslie]

I will give way to my right hon. Friend in a moment, because he has a great amendment relating to data, but I want to give an example about the protection of public health. The tobacco manufacturers sought to challenge the Government’s introduction of plain packaging for cigarettes—of course the tobacco manufacturers hated the idea and wanted to stop it—and the Government, in defence of that legislation, prayed in aid of their case the charter of fundamental rights and its protections for public health. The courts therefore upheld the UK’s plain packaging arrangements and legislation on the basis of the protections of public health rights laid out in the charter. That is a very specific example of how the charter has benefited the rights and protections of our citizens in this country.

[Stephen Timms]

I thank my hon. Friend for his kind reference to my amendment 151. Going back to the case brought by the now Secretary of State for Exiting the European Union, does my hon. Friend agree that, if the Secretary of State had not been able to rely on article 8, the likelihood is that he would not have won his case and that the hon. Member for Banbury (Victoria Prentis) would have won for the Government? Does that not give the lie to the suggestion that the charter has no impact?

[Mr Leslie]

My right hon. Friend is absolutely right. If the hon. Member for Banbury (Victoria Prentis) had won her case, would she be here today? Perhaps she would be higher on the judicial ladder.

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

The hon. Member for Banbury (Victoria Prentis) suggested that the charter of fundamental rights contains rights that are too complicated to be incorporated into English law. Will the hon. Member for Nottingham East (Mr Leslie) reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.

[Mr Leslie]

The hon. and learned Lady makes the point very well, but perhaps the hon. Member for Banbury would like to respond.

[Victoria Prentis]

My point is not that we do not approve of the rights, nor that we thought it was not possible to make the case without the charter, but that the charter has been part of English law since the Lisbon treaty. As good, responsible lawyers, whether acting for the Government or for anybody else, of course we use whatever tools are available to us, which in recent times have included the charter.

My point is that we do not need the provisions of the charter. It is true that it can be argued the charter can do one or two more tiny things, such as widening the class, making what we can get back greater and possibly widening the possibilities for claimants, but my case is that it is possible to do what we need to do to protect people’s human rights within the law as we have it in this country.

[Mr Leslie]

I hear the hon. Lady’s case that somehow the charter is not necessary, which is very much the case that Ministers have made in the past, but she has conceded that there are differences that the charter can apply. She characterises those differences as very small, but what she perceives as small or minuscule rights are not necessarily small or minuscule rights to our constituents, to members of the public or to the most vulnerable in society, who may depend on the very rights provided by the charter in crucial circumstances.

[Wera Hobhouse (Bath) (LD)]

Does the hon. Gentleman find it odd that we are transposing all EU law into our own law while taking away the thing that underpins all EU law? We are taking away the fundamentals and foundations of the body of EU law. Is that not an odd way of going about things?

[Mr Leslie]

I agree. I find it odd that Ministers are saying that, somehow, the charter does not matter but are then saying that we must delete the charter in the Bill. They would almost die in a ditch to defend clause 5(4), which simply says:

“The Charter of Fundamental Rights is not part of domestic law on or after exit day.”

If the charter is so benign and so irrelevant, why not have the report? It may be tedious to some, but the report is necessary to explain whether those rights do or do not offer protections. If the charter is so ineffectual, and if this is supposed to be a copy-and-paste exercise to transpose EU law, I do not see the argument for deleting the charter.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Has the hon. Gentleman paid attention to protocol 30? Article 1(2) states:

“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”

The whole point of the charter of fundamental rights, subject to the protocol, is that it does not apply in our national law.

[Mr Leslie]

I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend the Member for East Ham (Stephen Timms) will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.

[Suella Fernandes (Fareham) (Con)]

Will the hon. Gentleman give way?

[Mr Leslie]

I want to make a little more progress, if I may, because I need to reference a number of other amendments.

I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.

Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.

[Kerry McCarthy (Bristol East) (Lab)]

The recent prosecutions of the Government under clean air laws, for example, might not have been possible if the Francovich duty were not enshrined in law. The result of the Bill, as drafted, is that, the day before Brexit, people will have the right to claim damages from the Government for the harm they suffer, but there is a danger they will not have that right the day after Brexit.

[Mr Leslie]

My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations—as she says, it might well include failure to comply with air quality directives—and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements.

The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there.

Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.

[Mary Creagh (Wakefield) (Lab)]

My hon. Friend is making some excellent points. His amendment on Francovich echoes my own, although mine is slightly different on time limitation. Does he agree it is unthinkable that a Government who throughout this Bill have said, “All rights and protections would be guaranteed,” are now seeking to remove the ability to sue the state for imperfect administration, mostly of directives, at a time when they are about to incorporate hundreds if not thousands of pieces of EU law into our UK law? They are saying, “If anything goes wrong with any of that, you’ve got no right to sue us in the future.”

[Mr Leslie]

My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation—many Conservative Members often make that point about the size and power of the state—and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.

[Suella Fernandes]

As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently serious”, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently serious” in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?

[Mr Leslie]

Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection—that right to redress—from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.

[Mr Lammy]

My hon. Friend rightly suspects that the Government will say that removing the charter from the UK will not affect the substantive rights that individuals already benefit from in this country. Does he agree that the problem is that the Government do not go on to say what those substantive rights are? If we simply leave it to the common law, a future Parliament—it may not be this one—could determine that it is right to erode those rights. That is why it is important we stick with the charter.

[Mr Leslie]

We need to make sure that if we are transposing legislation, it is a true copy and paste, but that is not what has been proposed. I am not in favour necessarily of cutting off our relationship with the single market or the customs union. There are a lot of debates on the Brexit choices we have before us, but here we are dealing with a set of separate discussions about the rights that our citizens—our constituents—could have in a post-Brexit scenario, and we need a better justification in order to be convinced than that we should just throw these overboard at this stage.

[Anna Soubry]

I hope this will be a more helpful intervention. The hon. Gentleman is making a good point. The point about Francovich is that we will not be able to have a claim arising from a directive that we have accepted into substantive British law because we will have left the European Union, and that is simply not fair. People would have had a claim but we will have left, so someone who sought to make that claim afterwards will not be able to do so. It is right that we will not be subjected to any new directives, so people could not raise them, but it is bad to take away a right that people would have had as we had accepted the directive into substantive law. That is the point here.

[Mr Leslie]

Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?

[Charlie Elphicke (Dover) (Ind)]

I have been listening carefully to the hon. Gentleman’s argument on transposing the charter of fundamental rights into British law. Is it his case that it should be transposed as a cut and paste or that it should be adapted? Article 39 talks about the right to stand for the European Parliament, article 44 talks about the right to petition the European Parliament and article 45 talks about freedom of movement, all of which would presumably no longer be relevant after we leave the EU.

[Mr Leslie]

I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.

[Mary Creagh]

rose—

[Mr Leslie]

I will give way one more time but I want to make sure that other Members have a right to speak today as well.

[Mary Creagh]

I am in violent agreement with the right hon. Member for Broxtowe (Anna Soubry) on the issue of Francovich, and I will be speaking to those points in more detail when I come to talk to my amendment. Does my hon. Friend share my concerns that certain rights in the charter such as environmental rights, consumer rights and the rights of the elderly in particular, which are not highly developed in UK case law or in any other sort of legislation, are gently being thrown out with the bathwater in this removal of the charter of fundamental rights?

[Mr Leslie]

That is an exceptionally important point. Our legal system is one of the finest in the world. It is a dynamic legal system and is not simply reliant on statute; it can relate to cases as they evolve. The charter of fundamental rights, which could equally be a charter within the UK law, according to this Bill, if it were transposed, could help to maintain that dynamism and the protection of rights to fill the gaps when those unforeseen circumstances arise. We do not know what issues our constituents will bring to us from one week to the next, but we may well have a constituent who has found that their rights have been deprived unfairly and who needs redress to protect them from the Government or others. In our surgeries and discussions, what will we say to our constituents in such circumstances? What will we say when they say, “But you had the opportunity to transpose and retain the protections under the charter of fundamental rights”? Will we say “Oh, well, it was a very busy day. I didn’t really notice what was going on in the Chamber. There were lots of complex things going on to do with Brexit”?

This really matters. I am delighted and proud that many Members from all parties in this House are voicing their concerns and are not prepared to see these rights just swept away on a ministerial say-so.

--- Later in debate ---

[Vicky Ford]

It has been a huge honour to listen to the debate, and to hear so many contributions from so many wise colleagues.

I want to talk about the fundamental right to personal data protection, an issue that I have raised before in the House. It is a very important issue, because we are in the middle of a digital revolution—in the middle of the fourth industrial revolution. The ability to process vast quantities of data is vital to our tech and digital sectors, and is driving the future of medical research. If we want to continue to play a world-leading role, we must continue to be able to exchange data easily with other parts of the world.

In the history of our country privacy has largely been protected, but that has not always been the case in many European countries. Data protection—the right to have one’s personal data protected—is a treasured right. Let me point out to the Solicitor General that data equivalence will be not just a legal but a political issue, and we must therefore leave no one in any doubt that Britain intends to respect personal data.

It is excellent that the Government have agreed to implement the general data protection regulation. It is a highly complex directive, but it was not just agreed in some far-off place in Brussels. The process was led for the Liberals by a British Liberal who sits in the House of Lords and for the Conservatives by a British Conservative who also sits in the House of Lords, and was chaired by a British Labour MEP who is still chairing the relevant committee. So Britain was very much involved in the establishment of the GDPR.

There is a technical difference between the GDPR and the Data Protection Bill. The GDPR makes it clear that its first principle is to protect the right to personal data, and it is important that we too are seen to give that direct protection. It is in the interests of both sides to provide data adequacy. After all, Britain is responsible for more than 10% of world data flows, more than three quarters of which take place between Britain and the rest of Europe. Other European countries need to maintain that data flow, but the field is continually evolving: for instance, the European Commission is looking into ePrivacy law.

The hon. Member for Argyll and Bute (Brendan O’Hara) seemed to suggest that the Government were somehow not treating data adequacy negotiation seriously—we are—and told us that the Government had said they might want something “akin to” a data adequacy agreement. That is because the current agreement, the EU-US data privacy shield, is not as stable as data adequacy might be as part of a free trade agreement. There are many different ways in which that could be agreed, so let us ensure that we keep all the options open.

I hope I have given an example of an area in which rights are continually evolving—and, in a rapidly changing world, the rights that each of us has will need to evolve continually. Having listened to the debate, I think that we should not cut and paste the charter into British law now, but that we should take the matter seriously. We have been promised today that within the next two weeks—by 5 December—the Government will go through every single one of those rights, will list the parts of British law in which they already exist, and, if there are parts where they do not yet exist, will show us the process whereby they will be introduced. I think that, on that basis, we will create a more stable agreement to protect not just the rights of today but the rights of tomorrow, which is why I will vote against the amendments.

[Mr Leslie]

The debate on new clause 16 and the myriad other amendments has been held in a collegiate atmosphere. We have focused on the specific rights and wrongs of a number of quite technical legal points, but the one thing that stood out for me was the debate on the charter of fundamental rights. I have to tell the Minister that I am not convinced by the Government’s case. We were sold the idea that this would be “copy and paste” legislation, but that turns out not to be so. We were told that there was no need for the charter of fundamental rights, but if that is the case, what is the harm in retaining it? Those rights are incredibly important. They include the rights to privacy, personal data, freedom of expression, education, data privacy and healthcare, as well as the rights of children and elderly people. There are many rights in that charter, and it is important that we keep it within our legislative framework.

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Chris Skidmore]

It is not for me to comment, during a Committee stage, on the process of European negotiations. There is a time and a place for that. I am not going to get into a discussion with the hon. Gentleman about the process of EU negotiations. We must ensure that the Prime Minister has the opportunity to reach out to Brussels, but I am here to discuss clause 11 and schedule 3 and the amendments, and I hope that the hon. Gentleman will allow me to continue to do so.

I was talking about the common approaches that enable us to trade with each other in the knowledge that we share agreed standards. We have agreed approaches on how to manage our common resources, and the UK can enter into international agreements knowing that we, as a country, can meet our obligations. As we leave the EU, the simple question is about where we need to retain the common approaches in EU law and where we do not. In the immediate term, clause 11 and part 1 of schedule 3 create a mechanism for those common approaches to continue to apply throughout the UK after exit.

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

The Minister speaks of common approaches across the EU. We have heard today about the possibility of an alignment between the Northern Irish arrangements and those of the Republic and the rest of the EU. How will we retain those common approaches if, for instance, the UK negotiates a new trade deal post-customs union, and we end up with circumstances in which that would, or would not, apply to Northern Ireland? How on earth can the Minister reconcile that with the offer that the Government have been talking about today?

[Chris Skidmore]

I note that the hon. Gentleman has just walked into the Chamber. He is welcome to make a speech later on setting out his own principles; I would listen to that very carefully. I am addressing clause 11 and schedule 3 to the Bill. There is a time and a place for the wider discussions he wants.

--- Later in debate ---

[Chris Skidmore]

As I have stated, the Government’s intention is to seek legislative consent for the Bill from all the devolved Administrations, where possible. We have already seen legislative consent memorandums being tabled in Scotland and Wales, and we are determined to ensure that we work with all our devolved partners and with officials in Northern Ireland and that we legislate on behalf of the United Kingdom.

[Mr Leslie]

When?

[Chris Skidmore]

I am going to carry on with my speech. The hon. Gentleman has already intervened and now he decides to—[Interruption.]

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

Brought up, and read the First time.

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

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

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

New clause 80—Transparency of the financial settlement—

‘(1) Financial provision may be made for a financial settlement agreed as part of any withdrawal agreement under Article 50 of the Treaty of the European Union.

(2) Subsection 1 applies only if the financial settlement honours obligations incurred by the United Kingdom during the period of its membership of the EU.

(3) The Treasury must lay before both Houses of Parliament an estimate of the financial obligations incurred by the United Kingdom during the period of its membership of the EU, together with reports from the Office of Budget Responsibility, the National Audit Office and the Government Actuary each giving its independent assessment of the Treasury’s estimate.

(4) Any financial settlement payment to the European Commission or any other EU entity may be made only in accordance with regulations made by a Minister of the Crown.

(5) Regulations under subsection (4) may be made only if a draft of the regulations has been laid before, and approved by resolution of, the House of Commons.”

This new clause ensures that any financial settlement as part of leaving the EU must reflect obligations incurred by the UK during its membership of the EU, must be transparent, and must be approved by Parliament.

Amendment 54, in clause 12, page 9, line 4, at end insert—

‘(5) No payment shall be made to the European Union or its member states in respect of the making of a withdrawal agreement or a new Treaty with the European Union or any new settlement relating to arrangements that are to be made after exit day unless a draft of the instrument authorising the payment has been laid before, and approved by a resolution of the House of Commons.”

This amendment would ensure that there is a vote in the House of Commons to approve any settlement payment agreed by Ministers as a consequence of negotiations on a withdrawal agreement or new Treaty with the European Union.

Clause 12 stand part.

Amendment 152, in schedule 4, page 32, line 35, leave out “(among other things)”.

This amendment would limit the scope of regulations modifying the levying of fees or charges by regulatory bodies to only the effects set out in sub-sub-paragraphs (a), (b) and (c).

Amendment 339, leave out lines 1 to 3.

This amendment would remove the power of public authorities to levy fees or charges via tertiary legislation.

Amendment 340, page 33, line 3, at end insert—

‘(3A) Regulations under this paragraph may not be used to prescribe fees or charges that go beyond that which is necessary for recovering the direct cost of the provision of a service to the specific person (including any firm or individual) who is required to pay the relevant fee or charge.”

This amendment would prevent delegated powers from being used to levy taxes.

Amendment 153, page 35, line 8, at end insert—

‘(3) Modification of subordinate legislation under sub-paragraph (2) may not be made for the purposes of—

(a) creating a fee or charge that does not replicate a fee or charge levied by an EU entity on exit day, or

(b) increasing a fee or charge to an amount larger than an amount charged by an EU entity for the performance of the relevant function on exit day.”

This amendment would prevent Ministers using the power for public bodies to alter fees and charges either to create a fee or charge that does not currently exist for the purposes of EU regulators, or to increase a UK charge to be higher than an existing EU fee or charge.

That schedule 4 be the Fourth schedule to the Bill.

[Mr Leslie]

New clause 17 relates to clause 12 —[Interruption.]

[The Temporary Chair (David Hanson)]

Order. Will Members leaving the Chamber please do so quietly so that the hon. Member for Nottingham East (Mr Leslie) can continue?

[Mr Leslie]

Clause 12 relates to the financial provisions of Brexit. New clause 17 seeks to clarify that a specific legislative instrument is needed to authorise payment in relation to a withdrawal agreement settlement and that that can be permitted only if approved by a resolution of the House of Commons.

It is important that we do not glide by some of the big aspects of Brexit. It has massive ramifications, one of which is the fabled “divorce bill” as it is sometimes characterised. Some people say that it is simply the settlement of obligations and liabilities, but phase 1 of the discussions, which the Government have agreed with Michel Barnier to conduct before we move on to phase 2 on the framework of future trade relations, has to include a financial settlement. It is therefore important that Members of Parliament understand it, approve it and enter into the arrangement with their eyes wide open.

We are not considering small sums of money. Last week, it was widely reported that the financial deal had been made, but we can never be absolutely sure about such reports. It was also reported that the Prime Minister had a deal with the Republic of Ireland and the rest of the EU on the Northern Ireland border, and we all know what happened to that in recent days. However, it feels as though Ministers, the European Commission and others have sort of agreed a financial settlement, so last week we tabled an urgent question to press the Government. The Chief Secretary to the Treasury responded to it, but unfortunately she was a bit coy about the divorce bill. We were not allowed to know how much it would be. We were told that it was still part and parcel of the negotiation process, and how dare we ask? We were also told that it was unreasonable of us to intrude on sensitive negotiating arrangements. It seemed peculiar to me that it was all right for the British Government to tell Michel Barnier, Jean-Claude Juncker and the European Commission how much HM Government and British taxpayers were prepared to pay, but somehow Members of Parliament, never mind the British public, were not grown up enough to know the real sum.

[Ian Murray]

It seems peculiar that, when we are supposed to be taking back control, the House has not been given any kind of figure that we can scrutinise. The only figure we have is £350 million a week for the NHS, which we know is a complete lie.

[Mr Leslie]

That was the surprise, and not just for us. Perhaps we were a bit cynical and did not expect the £350 million a week for the NHS on the side of the red bus to come to fruition, but I think that the British public were genuinely surprised when it turned out that, rather than Brexit’s giving us that fantastic dividend, it was actually going to cost us a considerable amount.

[Toby Perkins (Chesterfield) (Lab)]

It is not surprising that the public were surprised. We may have accepted that much of what was promised during the referendum might fall apart subsequently, but even after the event the Government were telling us a very different tale. My hon. Friend will remember being with me on the International Trade Committee when the Secretary of State came along and said, “I don’t expect us to pay anything to leave.” My constituents heard that said not just during the referendum, when they might expect to hear things that were somewhat fanciful, but many months later. The Government were saying, “We won’t be paying anything to leave.” What we are hearing now is very different.

[Mr Leslie]

It is worth listing the promises that were made to the British public in the run-up to the referendum, not just by Vote Leave but by individual Members of Parliament, including the Environment Secretary and the Foreign Secretary. On 22 June 2016 they wrote, on behalf of Vote Leave:

“We will take back control of our money”.

The International Trade Secretary said:

“Instead of handing over £350m a week to Brussels we should be spending that money on local priorities”,

such as the NHS.

I am delighted to see that the right hon. Member for Wokingham (John Redwood) is present. He is very assiduous when it comes to these issues: I will grant him that. Before the referendum, he asked “How should we spend this Brexit bonus?” It was suggested that riches would be available for our vital public services. Those were the promises that were made to the British public.

[Stephen Doughty]

Is it not all the more extraordinary that we are told not only that we will have to pay tens of billions as a divorce bill, but that the Chancellor has already put aside £3 billion—on top of the £750 million that has already been spent—just to cope with the costs of preparing for a potential no-deal Brexit?

[Mr Leslie]

We saw that £3.7 billion of supposed Brexit preparations in the Treasury Red Book at the time of the Budget, but I suspect that it is quite a modest sum. I know that there are former Chancellors of the Exchequer and others who have more experience than I do in this regard, but I think that those sums may have been set aside for a softer Brexit. If we ended up with a cliff edge with people saying, “We don’t need even a free trade agreement; we can cope on our own in a WTO scenario”, those Brexit preparation costs could be significantly higher.

[Anna Soubry]

The hon. Gentleman is making an extremely important point. Lots of people who had become really fed up and disaffected with politics and politicians took out their frustrations in the referendum. As the hon. Gentleman has said, many of them genuinely believed that if we left the European Union, there would be more money to be spent on our NHS. He is right: not only will we not have that money, but our economy could begin to retreat—and if we do not get a good deal but fall back on WTO rules, it undoubtedly will—and we will have to put aside, by way of example, £3 billion for Brexit, money that could have gone to the NHS. So my question to the hon. Gentleman is this—

--- Later in debate ---

[The Temporary Chairman]

Order. The right hon. Lady must make short interventions. If the hon. Member for Nottingham East (Mr Leslie) wishes to give way, he can do so again, but the right hon. Lady must make short interventions.

[Mr Leslie]

The right hon. Lady was making an incredibly important point, Mr Hanson. It is not just a question of the divorce bill—the financial settlement—and it is not just a question of the billions to be set aside for Brexit preparations. The bigger issue that the right hon. Lady was raising is what will happen in a dynamic economy if our trade opportunities shrink, and if obstacles and tariffs are put in the way. This is not just our assessment, or opinion. The Chancellor himself published a table in his Red Book which showed what he and the Office for Budget Responsibility expected to happen to tax receipts over the next few years. He anticipates that by 2021 tax receipts will have fallen by not just £10 billion or £15 billion, but by £20 billion. That is £20 billion less revenue for the Exchequer to spend on the vital public services we want. This is a triple whammy, therefore, in terms of the costs of Brexit, and it is a surprise to many members of the public, who were told precisely the opposite.

[Tom Brake]

May I suggest that in fact it is a quadruple whammy, because the hon. Gentleman has not yet referred to the fact that the mythical impact assessments that the Government have or have not conducted—we are not quite sure—probably contain some very large figures about the damage Brexit is going to cause to the 58 sectors on which those reports were apparently conducted?

[Mr Leslie]

It almost beggars belief that we are hearing not only that the Cabinet has not yet discussed the sweeping of the single market and customs union from the table, and has not yet had the chance—it is very busy—to discuss the future relationship between the UK and the EU, but that it has not even bothered to commission impact assessments. If ever there was an example of a no-questions-asked Brexit—we just career headlong towards the cliff edge, blindfold, and we do not want to ask questions—this is it. We want no information, say the Government. That is the situation we are in.

[Sir Edward Leigh (Gainsborough) (Con)]

The hon. Gentleman is very well informed and of course, as we know, very bright, so perhaps he can inform the Committee of the cumulative net cost of the EU—our net payments over the last 42 years.

[Mr Leslie]

People have speculated that the net cost in terms of payments was about £10 billion a year, although some have said it was less, depending on how we look at it, but there is a cost to be paid for being a member of any club. We have to weigh against those fees and charges the benefits we get from being a member. If we are a member of a club and are gaining benefits from it, we have to ask whether the advantages outweigh the disadvantages and the benefits outweigh the costs. It is clear in terms of the wider economic expectations, and the Chancellor’s own assessments of what is going to happen to tax revenues in the future, that we are potentially going to be poorer as a result of some of the Brexit scenarios we are seeing.

[Martin Whitfield (East Lothian) (Lab)]

Does my hon. Friend agree that one of the net benefits has been peace and prosperity across Europe?

[Mr Leslie]

Yes, it is true that the benefits are not simply financial. There are social benefits as well as economic benefits, and environmental benefits, and general welfare benefits that we have had in terms of the stability of the continent for such a prolonged period of time. Those benefits should not just be idly swept away; they should certainly be assessed, and the Cabinet should certainly be discussing them.

[Dr Murrison]

Not only is the hon. Gentleman very wise, as my hon. Friend the Member for Gainsborough (Sir Edward Leigh) pointed out, but he is also very fair. In the interests of fairness, and in the context of the point about the £350 million a week, does he accept that greatly exaggerated claims were made by right hon. Members, some of whom remain in this House and some of whom are no longer in this House, about what would happen on day one after we voted to leave the EU? So far as I am aware, there have been no plagues of frogs and locusts, and the sky has not fallen in.

[Mr Leslie]

And we have not left the EU left. The hon. Gentleman makes the point that in any election or referendum campaign there are of course claims and counter-claims, but the success of the leave campaign has caused the situation we are now in, compounded by the choices made subsequently—the interpretations that were not on the ballot paper about sweeping away the single market and the customs union. These have led not to my assessment of what will happen to tax revenues, but to the hon. Gentleman’s own Chancellor of the Exchequer’s assessment. We can talk about our expectations during the campaign, but the hon. Gentleman must acknowledge that the public feel that a result was reached during the course of that referendum and they will look to those who advocated leave and think of the promises made at the time, and expect them to be fulfilled.

[Stephen Doughty]

We rightly debate all the figures, including the infamous £350 million on the side of the bus, but do we not also need to look at the real impact on the ground? The fact is that we are now having to recruit new customs and border officials to deal with the potential consequences of Brexit instead of spending Home Office budgets on new police officers.

[Mr Leslie]

Yes, there is a sense that the nation should be talking about how to tackle the massive challenges that we face—questions of productivity, of opportunities for young people and of the kind of healthcare improvements we can expect in the 21st century—but they have now been put on the back burner while we try to negotiate an inferior free trade arrangement to the one that we currently have. This is a kind of salvage operation.

[Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)]

I am a new Member here, and most of the people around the House do not have a clue who I am, but as a new Member, I think I might bring a slightly fresher approach to the debate. Nobody in their right mind would sign a blank cheque for this amount of money, but if I tried to explain to my constituents why I am not going to be consulted about the final sum, I could not do it. It’s nuts!

[Mr Leslie]

At the very least, we should know what we are being asked to pay. We know that the Foreign Secretary told the European Union to “go whistle”, and perhaps that is still the Government’s official policy. We also know that only in September the Brexit Secretary was saying that a figure of £50 billion was “nonsense”. Since then, of course, we have seen completely different reports. Parliament and the people deserve to know the sum involved. The idea of a blank cheque is completely unacceptable.

[Toby Perkins]

I am worried that my hon. Friend is going to move on from the important point that he has just raised about the impact assessments. There is a serious question about the competence of the Government if they have gone ahead with this without producing those assessments. There is a more important question, however. We as Members of Parliament were told that there were 58 documents that went into excruciating detail, but it now appears that that was not true. Amid all the talk about what happened outside this place, we must not forget the central point that the Secretary of State stood at the Dispatch Box and told us that those documents existed and that the Prime Minister had looked at a summary of them. He is now saying that those documents do not exist, so what he said was not true.

[Mr Leslie]

My hon. Friend’s anger about this is correct. For all the bonhomie and swagger of the Secretary of State for Exiting the European Union, this is unacceptable. He always has a cheeky little smile and a glint in his eye, but we should not let him off the hook. With all that bluster, he was saying, “Oh, don’t worry, there are oodles of detailed impact assessments but you must realise that they are commercially sensitive. We can’t possibly share them, but don’t worry, detailed impact assessments have been produced.” It now turns out that his bluff has been called, and when the curtain was pulled back we saw that those things did not exist, and he is now cycling away. Nobody expected this to be quite so threadbare.

[Tom Brake]

Will the hon. Gentleman give way?

[Mr Leslie]

I would like to make another point before I give way again.

This brings in the wider theme about sidelining Parliament and creating a sense that we should not have proper scrutiny of these issues. The new clause is about scrutiny, as is the debate going on in the Brexit Select Committee. It is also about the fact that sovereignty lies not in the hands of Ministers but in the hands of Parliament as the representatives of the people, and we need to do our job. The massive land grab of legislation, under the Henry VIII clauses in the Bill, is not acceptable. The cloak and dagger pretence about the impact assessments is not acceptable. Also, the idea that the divorce bill will be somehow covered over in some grubby hidden backroom negotiations, itemising only the textual liabilities rather than showing us the pounds, shillings and pence figures, is not acceptable.

[Chuka Umunna (Streatham) (Lab)]

The new clause goes to the heart of the argument made for the UK leaving the European Union: this House would take back control. It was done in the name of parliamentary sovereignty. Does my hon. Friend not find it curious, therefore, that the Members who argued in the name of parliamentary sovereignty that we should leave—I see the right hon. Member for Wokingham (John Redwood) in his place, and the hon. Member for Gainsborough (Sir Edward Leigh) and others—do not support his new clause? I find it remarkable. That this House should approve any divorce bill would be the ultimate reassertion of parliamentary sovereignty.

[Mr Leslie]

I see the right hon. Member for Wokingham (John Redwood) nodding his head, so he agrees. He is an honourable gentleman, because he does believe in parliamentary sovereignty. Many hon. Members agree that the new clause is not about whether we believe in the single market or the customs union; it simply states that when the withdrawal agreement comes to fruition there needs to be a specific vote on the money, because it will come from the taxes collected by the Exchequer—by the Government—and authorised by Parliament. There needs to be authority. I want to see hon. Members who advocated the whole process, on both sides, having to put their mouth where their money is and go through the Lobbies to state an opinion about the amount of money involved.

[Mr Cox]

Has the hon. Gentleman considered whether his new clause would achieve that, because it is phrased so that a draft of the instrument authorising a payment must be approved, but that would not require a specific sum? It could simply be a framework regulation allowing for such a payment to be made. Surely his new clause is not to the point.

[Mr Leslie]

The hon. and learned Gentleman, who considers these matters in great detail, will understand that this matter relates to clause 12, which details financial provisions. Clearly it would be impossible for the Government to bring forward such a motion that did not have the clarity that the House expects. In my generosity, I drafted the new clause so as to make it as broad and flexible as possible. Any information would be better than no information. I know that he is urging me to be firmer with the Government on the issue—a manuscript amendment is always possible, so I look forward to that. Let us give the Government a chance to accept the new clause, because it is perfectly reasonable.

[Clive Efford (Eltham) (Lab)]

My hon. Friend is exposing whether the Government are hiding facts from the House over the cost of the divorce bill. Is he concerned, as I am, that the lack of scrutiny means we do not know what we are getting for the money? For instance, we have heard from Government Members that we are leaving a club. Well, we have to settle our tab before leaving a club. They are also confusing that with the future trade deal. We are not seeing what the cost of the trade deal will be. There seem to be two figures here: the cost of leaving and the cost of a trade deal—but we are not getting that detail from the Government.

[Mr Leslie]

No, and of course we are talking about the divorce bill now, even though we have had no sight of it, because the Prime Minister is naturally anxious to move on from phase 1 to phase 2 of the talks. I almost feel sorry for her, because she is being pulled from pillar to post, with the hard Brexiteers wanting one thing and the DUP always yanking her chain in another way. The EU is of course a stickler when it comes to sufficient progress, but sufficient progress is what she wants to achieve, so she will give them a nod and say, “We will give you a divorce bill settlement, but please don’t publish how much it is, in case Parliament and the public find out.” If it is in the order of £67 billion, which is in the back of the OBR’s red book—I doubt it will be that high—that equates to £1,000 for every man, woman and child in this country. Members should just think about that when they are next in their constituencies: £1,000 for every single person they see will be part of that divorce bill.

[Tom Brake]

Does the hon. Gentleman believe, as I do, that the Government have managed to convince themselves that the EU is going to “go whistle” and that leaving will not cost us a penny because they get their information from too limited a number of sources? I do not know whether he is familiar with the Legatum Institute—I know that the Minister on the Front Bench is a fan—but the Government seem to give it undue access, and possibly influence, and it has a specific agenda.

[Mr Leslie]

I do not want to get too side-tracked into my opinions on the advice given by the Legatum Institute. Let alone the Government, I suspect the Legatum Institute has not been doing many impact assessments. The Legatum Institute might be a good cheerleader for the cause—there are many good cheerleaders for that particular cause—but that emotional response is not necessarily evidence-based.

A minute ago, my hon. Friend the Member for Eltham (Clive Efford) raised the question of what we will get for this divorce bill settlement. That raises the next natural question. Many commentators are assuming that, by moving on to phase 2, we part with this £50 billion or £60 billion and, at last, we are finally able to talk about trade. Actually, under article 50, we will not be entering trade deal territory; we will be entering territory that is about a framework for the future relationship with the European Union.

[Lady Hermon]

Will the hon. Gentleman give way?

[Mr Leslie]

I will give way in a minute.

It is important the Committee realises that phase 2 is not trade talks. The £50 billion does not secure a trade deal. Article 50 refers to:

“an agreement...setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

Phase 2 of these article 50 talks will look at only the framework, not the substance of future relationships. The details of that full trade deal will begin only when the UK becomes a third country, which is important because we are getting to the notion that this is the only financial commitment for which we are on the hook. Phase 2 is actually a bit of an interregnum period. The actual detail of the trade relationship will come after we have left, after exit day. The whole Committee needs to appreciate that.

[Anna Soubry]

Does the hon. Gentleman agree that the Bill is paving the way for a hard Brexit? The Bill is dealing with everything up to exit day, and thereafter, if we get a deal, it will be sorted out after we have left the European Union.

[Mr Leslie]

That is why so many of the amendments tabled by the right hon. Lady and by other hon. Members are crucial to ensuring that Parliament keeps its foot in the door in this process so that we do not just give things away, money for nothing, by giving Ministers total power on exit day to negotiate these arrangements and treat Parliament as a rubber stamp after the fact. We have a duty to make sure we get whatever best deal is possible. Phase 2 could simply be heads of agreement. It could be a couple of sides of A4 simply saying that, after exit, we intend maybe to talk about the details of a particular trade deal. This £50 billion or £60 billion is not purchasing a trade deal.

[Ian Murray]

Is my hon. Friend arguing that this country will spend up to £67 billion, over which Parliament will have no say, to leave a club and to take us on to a stage to create a framework to re-enter a relationship with that club?

[Mr Leslie]

More or less, and that that relationship may never match, even partially, the arrangements that we have at present.

If my hon. Friend and other hon. Members will bear with me, we then have to imagine that we have just gone past exit day. We might have a heads of terms framework. We then, of course, enter a two-year transition period, if we are lucky. How much will we have to pay during that transition phase? The notion that our divorce bill is the end of the money is, of course, not right. I anticipate that, during the transition, if we are on the exact same terms as now, which is the impression we have from the Government, we will obviously have to continue paying into the club for those years of transition.

If we want to get any deal at all, especially one that is better than Canada’s comprehensive economic and trade agreement, we will also have to pay into the club for future years. If we are lucky enough to get the inferior arrangement that is the Norway deal, which is certainly better than absolutely nothing but is not as good as the single market and customs union membership we have right now, we will have to pay to be members of the club. The idea that the full benefits of Brexit are to come is a fallacy. The Norwegian people pay £140 per head each year for the Norway arrangement. We pay about £210 to £220 per head per year, so roughly two thirds of that cost will continue, for the inferior relationship. These are costs to our taxpayer that they need to know about, so that they can make assessments of the these things.

[Wes Streeting (Ilford North) (Lab)]

Is my hon. Friend aware yet of the evidence the Chancellor gave to the Treasury Committee this afternoon, when he, in effect, confirmed that there has been no Cabinet decision or agreement about the desired end position of the British Government? So we are leaving the single market and the customs union—that is not a decision taken by the Cabinet—but if we ask any Minister what the form will be to deliver on the Florence speech, they will not be able to give us a Government position. What an absurdity this is.

[Mr Leslie]

It is not just an absurdity; it is massively irresponsible for the Government to run headlong in a direction without knowing where they are going and without doing any assessments of potential costs. It is important that the British public see this, because they need to understand that this is not a fait accompli. We do not just have to throw up our hands and say, “Nothing can be done about this. It is all just going to happen.” The British people do have power. They do have a chance to change course. I believe we will see the clock ticking away and there will come a moment when we have to make a judgment and say, “Are we just going to continue to this timeframe?” Article 50 can of course be revoked or put on pause, and we need to consider that as an option. The British people do have the right to think again if, on reflection, they see that this process is too costly and potentially too damaging.

[Helen Goodman (Bishop Auckland) (Lab)]

My hon. Friend is making a good case. There is a further cost that he is not taking into account, which is the cost to the public finances. We know that the Red Book takes no account of the £40 billion or £50 billion in the divorce bill, which means that the Government’s forecast—or the OBR’s forecast—for the public finances will be shot to pieces. That means interest rates will go up faster than anticipated and the cost of Government borrowing will go up. This is a major economic event and we need an assessment of that as well from the Government. Does my hon. Friend agree with me?

[Mr Leslie]

Yes. All hon. Members, not just the Government—there are such hon. Members even on the Labour Benches—will want to commit public resources to all sorts of things, and they need to recognise that if the cost is £60 billion, that is not something to be sniffed at. In a couple of years’ time the deficit is projected to be about £30 billion a year, so we are talking about the equivalent of two years of deficit to be added, presumably, to the national debt at that point in time. That is all notwithstanding what happens to our wider economic circumstances. These things should not just be dismissed.

We should be putting the House of Commons at the centre of this process and not treating it as a peripheral part of the Brexit arrangements. That is why this new clause is so important. Brexit is a costly exercise and Parliament needs to have the chance to properly reflect on it. A potential divorce bill of £1,000 for every man, woman and child in this country certainly should not just be brushed aside. When we ask ourselves what we are getting for this arrangement, we see that we are getting the chance to rip up the finest free trade agreement—a frictionless, tariff-free agreement—of anywhere in the world, for the chance to have something inferior. The current path we are on is not about taking back control; this is about losing control. The idea that Parliament should simply step to one side and agree to have control taken away from it is not acceptable to me and to very many hon. Members. This new clause would at least drag Brexit back into the sunlight and let the public hold those responsible to account.

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

With his customary eloquence, the hon. Member for Nottingham East (Mr Leslie) has given a splendid speech about many things. I wish to divert slightly from his path by taking his new clause seriously as a legislative object, rather than engaging in the interesting questions he raised about the utility or otherwise of the whole of Brexit. The Committee is called upon to decide whether proposed amendments to the legislation are meritorious in terms of achieving the objects of the Bill, and that is what we have done in Committee on many other occasions as we have gone through the Bill.

It is obviously right that Parliament should control public expenditure. The withdrawal agreement will be an element of public expenditure, so one might think that new clause 17 was meritorious. However, it is clear that the payments that the new clause describes will, if they arise at all, be part of an agreement. The Government, rightly, have already said that Parliament will have a vote on the agreement. We cannot vote on an agreement without voting on the financing of an agreement, because the agreement will stipulate the financing. Therefore, new clause 17 is entirely otiose and there is no reason for the House to vote in favour of it. The House should reserve its voting for a later moment when the Government introduce the amendment to allow us to control the agreement, which I shall certainly support.

[Sir Oliver Letwin]

As so often, my right hon. Friend snatches the next words from my mouth. I was about to say that the House will, as he rightly observes, be called on to vote on primary legislation, as we understand it, which will of course require something called a money resolution, with which I know the hon. Member for Nottingham East is fully familiar because I have heard him make long speeches about them on several occasions. He is an expert at doing so, and no doubt he will enjoy doing so again when the relevant resolution comes before the House, but new clause 17 is not necessary to achieve the objective.

[Mr Leslie]

The right hon. Gentleman makes a fair point about wanting to probe the details of the new clause, which is specifically about amounts of money paid out without authorisation. He must agree that despite their name, money resolutions do not always specify a sum of money. A draft withdrawal agreement would not necessarily have to set out the amount of money, either. If he has heard otherwise from the Government, I would be interested to know.

[Sir Oliver Letwin]

I do not think there is the slightest chance that a withdrawal agreement will be put before the House that does not specify, or enable one to calculate, an amount of money, because there is no indication that the EU would accept such a thing. Whether or not we should be paying such an amount is a separate matter. In any event, as my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) just said from a sedentary position, if that is a deficiency of a forthcoming money resolution, it is a deficiency shared by new clause 17, which also does not stipulate anything about an amount. One way or the other, I fear that the new clause is otiose. It has given an admirable opportunity for the hon. Gentleman to make an interesting speech, but that is its only virtue. The House should have nothing further to do with it.

--- Later in debate ---

[Tom Brake]

Although new clause 17 may be otiose, to echo the right hon. Member for West Dorset (Sir Oliver Letwin), it does at least give Members the opportunity to express strong views on aspects of Brexit. I wonder whether among Government Members there is any sense of humility, shame or embarrassment about what they are inflicting on the country. Looking at the chaos and instability, and indeed the loss of influence, the UK has experienced in the past few months, I would have thought that some Conservative Members would be starting to question their enthusiastic endorsement of action that is weakening the United Kingdom and leaving us much, much poorer.

I know there are Members on both sides of this House who were remain supporters and who are keeping quiet and biding their time. They tell me that they are waiting for the polls to shift before coming out and voicing their concerns about the impact of Brexit more openly. I point out to them that they do not have much time to wait for the polls to shift before Brexit goes ahead—if it goes ahead. I say “if” because there is nothing final about it. Clearly article 50 is revocable, and although the will of the people on 23 June last year expressed itself one way, current polling suggests a majority in favour of a vote on the deal.

[Mr Leslie]

The right hon. Gentleman’s remarks so far are interesting. Is it not telling that those who urged the country to take this course—those who feel that Brexit will provide this dividend, these great riches—are amazingly mute today? When it comes to the crunch, they do not want to be seen to defend Brexit and the impact it will have on the public finances. I think they should be made to vote for the consequences of the actions they argued for.

[Tom Brake]

I agree absolutely. That is why new clause 17, which the hon. Gentleman moved, is not otiose at all. It would put people on the spot: they would have to vote, hopefully for a figure. I hope the Government will want to do that, in the name of accountability and transparency. We need a figure, because there is a real risk. We have seen press reports that some arrangement will be reached whereby the Government and the leading leave campaigners within the Government will be saved the embarrassment of a very large—£45 billion to £50 billion—figure being put into the public domain. As several Members have said this afternoon, that is the down payment, not the final divorce settlement.

--- Later in debate ---

A huge amount of the Bill draws into the Executive a sovereignty which, in my opinion, extends far beyond that which the Executive should rightfully exercise. The new clause would put parliamentary sovereignty back where it belongs, where Members of this House can vote on it. We have heard quotations about how the referendum allowed people to “take back their money” and to get a “Brexit bonus”. Much has been made of the potential, but the reality of how we leave Europe and the reality of the consequences are now starting to become apparent.

[Mr Leslie]

My hon. Friend is making a powerful case for parliamentary sovereignty, clarity and transparency. Do his constituents, like mine, not expect that when they elect a Member of Parliament, that Member of Parliament’s job is to exercise sound stewardship of the money that they part with—the money that they give to the Chancellor and the Treasury when they pay their taxes? Would they not be mystified, and very angry, if they thought that we were nodding through £40 billion or £60 billion without specific authority? Would they not be absolutely astonished at the Government’s implied proposition?

[Martin Whitfield]

That clearly must be the case. There is an expectation on us to explain how the pounds, shillings and pence are spent, rather than just say, “Oh, it was just nodded through,” and when asked how much it cost, say “I have no idea.” That is unacceptable to those who send us here, and rightly so, because it is their taxes that pay for this; it is their work, their productivity and their hard graft—to use a phrase I heard earlier today—that raises the money to meet these bills.

The draft of the instrument in new clause 17 and of the regulations in new clause 80 are put there on the expectation that there is some transparency. The events of the last few days, weeks, and certainly months would have seriously benefited from having had far more transparency about what is happening. It is not necessarily the case that keeping hidden a sector title of “Forestry” aids our negotiations. If there were more transparency, the Government would have had far more useful and sensible advice from various industries around the UK. If they consider, even or stumble upon the idea of, an impact assessment for the regions, and perhaps if they share with the regions that that is being carried out, the regions—and indeed the devolved powers—could share some of their expertise, so that, as with these amendments, when measures come back to this House we may make a reasoned decision based on facts, influenced by our constituents’ views and genuinely aiming to make the best of a situation that, much like the vaunted driverless cars, could be heading for an absolute disaster.

[Ian Paisley]

When the hon. Member for Nottingham East (Mr Leslie) moved new clause 17 he made a number of worthy points that need to be addressed. I will obviously be voting against the new clause if it is pressed to a vote, and I hope that that is the point, but in terms of the raison d’être of all of these amendments, the cat has been let out of the bag: the hon. Gentleman wishes to revoke article 50 and thereby overturn the will of 17.4 million people. That is the be-all and end-all—that is the raison d’être of what we have heard tonight. The whole tactic of these amendments—no matter how reasonable they might sound and how powerfully supported by some Members—is essentially to do-over the will of the British people.

[Mr Leslie]

The hon. Gentleman is being a little unfair. He should look at the text of the amendment, which simply says that the consequences of Brexit—the costs to the public and his constituents, who might have to fork out £1,000 per man, woman and child—should be authorised by this Parliament; we should take back control. The hon. Gentleman can imply all sorts of motives on my shoulders for tabling it, but it would be honourable if we could address the topic at hand.

[Ian Paisley]

I am addressing the topic. Does the hon. Gentleman deny that he wishes to revoke article 50 and turn over the will of the British people?

[Mr Leslie]

The point that I made was that article 50 can be revoked if the British public wish that to be the case. The Prime Minister has not denied that is the case; she might say that it is Government policy not to revoke article 50, but she has not said that it is impossible to do so. I was simply pointing out a legal reality.

[Ian Paisley]

The hon. Gentleman says he has pointed out a legal reality, but the Labour party’s position on all of these matters is now no clearer than mud. Are we ultimately going to honour the will of the British people, enact this Bill, and withdraw from the EU? That is the bottom line. All these amendments are slowly but surely being exposed as having a different motivation. It was said earlier that there was a need to put the Brexit Members of Parliament on the spot and get them to vote for the consequences of Brexit. I will happily walk through the Division Lobby tonight to vote down new clause 17, for the very reason that I wish to put into practice and into law the will of the British people. They voted to leave, and we must bring it on and allow them to leave. Confusion has been allowed to reign as a result of the proposed amendments.

--- Later in debate ---

[Graham Stringer]

I have to say that I found it a bit curious, having voted for a referendum for many years, to find all my Labour colleagues finally in the same Lobby as me. The argument given by the leadership at the time was that the election had been lost, the public had voted by a majority for a referendum and it was going to recognise that.

On the financial issues, I am always in favour of transparency, which is what the essence of this argument is about. It is difficult for any Member not to be in favour of transparency, but with regard to the actual wording of the amendments, they are rather biased in terms of costs and do not, as I would have preferred, put the savings in the context of what we do not have to spend. As has been said, in all certainty, net, there will be a saving. People opine that there will be huge costs to leaving the EU. I do not know what the Government are likely to pay or not pay. I suspect that they will end up paying too much, but if we look at the history of the common market and the EU, over that period, we have probably paid half a trillion pounds net—a huge amount of money. What has been the benefit of that? We have gone from having a balanced trade with the EU to running a deficit of about £70 billion a year.

[Mr Leslie]

I am incredibly grateful to my hon. Friend for giving way. I accept the point that there could be savings or, in my view, much bigger costs, but could we at least agree, here and now, that the £350 million a week for the NHS, which was on the side of that big red bus, is not going to happen?

[Graham Stringer]

I do not know what decisions will be made. I believe that the Government are likely to pay too much. Let us ask ourselves: why would we be paying money so that the rest of the EU can trade with us and every year sell us £70 billion more in goods than we are selling to the EU? Why is that a deal that we should be keen to support? I suspect that the Government will come back and put it to—

--- Later in debate ---

[Mr Baker]

I am happy to tell the right hon. Gentleman that, as a good Conservative, I certainly hope to reduce the costs on businesses and individuals. I will come to his amendments in a moment.

New clause 17 and amendment 54 show an understandable desire to protect the role of this House, but they are not necessary. The Government have always been clear that the negotiated financial settlement will be part of our withdrawal agreement and that the House will be given a vote on that agreement. My right hon. Friend the Secretary of State for Exiting the European Union was very clear on 13 November when he announced the withdrawal agreement and implementation Bill. He said that, as one of the principal elements of our agreement with the EU, we expect that legislation to include authorisation to pay any financial settlement that is negotiated with the EU. The Bill we are debating today is about ensuring that the statute book is operational on exit day, not about paying any settlement. The same argument applies to new clause 80.

[Mr Leslie]

The Minister says that there will be an opportunity to vote on the finances, but only as part of the entirety of the proposed withdrawal agreement. Would it not be proper, as is the case with many other financial issues, for the House separately to authorise financial expenditure in relation to exiting the European Union? Surely the Government should commit to that power for the House of Commons, or will he deny us that opportunity?

[Mr Baker]

I am confused by the hon. Gentleman, because he is such a diligent Member of the House. I explained moments ago that we will bring forward the withdrawal agreement and implementation Bill, which will cover any financial settlement, among other withdrawal issues. I would of course expect that Bill to go through the normal legislative processes, during which he and other right hon. and hon. Gentlemen will have a full opportunity to scrutinise those provisions.

I turn to the amendments tabled by the right hon. Member for East Ham (Stephen Timms). The power in part 1 of schedule 4 can be used to create fees and charges of the type that amendment 153 is concerned with. That power can be used to establish new fees only in relation to functions being transferred to UK entities under the powers in this Bill. In most cases, one might expect that it will be replacing a fee set at EU level, but in some cases it may be right that it will be better value for the taxpayer and for users of the services to create a new fee to pay for functions that the UK previously funded through the EU budget.

Amendment 152 does not recognise the need for adjustments to other, peripheral aspects of the fees regime in connection with charging fees or other charges—for example, arrangements for refunds, which I think all Members can agree should be possible so as not to leave ordinary hard-working fee payers unfairly out of pocket. Furthermore, future Governments, in the fullness of time, may wish to simplify charges, amalgamate them, or charge less for one function or another.

--- Later in debate ---

[Mr Baker]

As the hon. Lady would expect me to say, what I want is Parliament to have proper control over our laws, our money, our borders and our trade policy. Having expressed my gratitude for her intervention, I hope that I have tackled right hon. and hon. Members’ concerns, and I urge them not to press the amendments.

[Mr Leslie]

I have heard what the Minister said. In fact, he even had the gall to use the phrase, “take back control” while simultaneously telling Parliament that it cannot have a separate, free-standing vote on this massive divorce bill, which will potentially cost the constituents of every single Member in the Chamber—every man, woman and child—up to £1,000 a head. They expect accountability for those decisions, and I want all those hon. Members, particularly those who advocated a hard Brexit, and who still potentially advocate going over the cliff edge into World Trade Organisation terrain, to walk through the Lobby and be held accountable for the amount of money that it will cost taxpayers for decades to come. That is why I do not wish to withdraw new clause 17. I believe that Parliament should exercise control over those amounts of money. Let us take back control and have accountability for those sums of money. I wish to push this to a vote.

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

European Union (Withdrawal) Bill

Chris Leslie Excerpts

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

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

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

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

With this it will be convenient to consider the following:

New clause 24—Scope of delegated powers—

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

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

New clause 27—Institutional arrangements—

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

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

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

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

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

(a) monitoring and measuring compliance with legal requirements,

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

(c) enforcement of legal requirements,

(d) setting standards or targets,

(e) co-ordinating action,

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

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

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

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

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

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

New clause 35—Regulations (publication of list)—

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

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

(a) the proposed title of the regulation,

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

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

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

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

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

New clause 37—Governance and institutional arrangements—

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

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

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

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

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

(a) monitoring and measuring compliance with legal requirements,

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

(c) enforcement of legal requirements,

(d) setting standards or targets,

(e) co-ordinating action,

(f) publicising information.

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

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

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

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

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

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

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

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

(a) their parents;

(b) their adult siblings;

(c) their aunts and uncles;

(d) their grandparents.”

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

New clause 62—Enforcement of retained environmental law—

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

(2) The regulations must, in particular—

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

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

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

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

New clause 63—Environmental standards and protections: enforcement—

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

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

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

(b) monitoring and measuring compliance with legal requirements,

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

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

(e) enforcing legal commitments.

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

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

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

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

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

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

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

New clause 82—Tertiary legislation—

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

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

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

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

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

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

This amendment would place a general provision on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) Community Plant Variety Office (CPVO),

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

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

(f) European Asylum Support Office (EASO),

(g) European Aviation Safety Agency (EASA),

(h) European Banking Authority (EBA),

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

(j) European Chemicals Agency (ECHA),

(k) European Environment Agency (EEA),

(l) European Fisheries Control Agency (EFCA),

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

(n) European Maritime Safety Agency (EMSA),

(o) European Medicines Agency (EMA),

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

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

(r) European Police Office (Europol),

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) declaring that the person making the regulations—

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

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

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

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

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

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

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

(5B) These conditions are that—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6A) Those conditions are that—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Clause 7 stand part.

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

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

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

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

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

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

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

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

“, apart from amending or modifying this Act”.

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

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

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

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

This amendment is preparatory to Amendment 370.

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

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

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

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

(3A) Those conditions are that—

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

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

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

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

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

(f) the provision is not of constitutional significance”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New clause 1—Scrutiny Committee—

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

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

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

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

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

(b) elected by the whole House.”

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

New clause 6—Government proposals for Parliamentary scrutiny—

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

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

New clause 26—Scrutiny of statutory instruments—

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

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

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

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

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

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

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

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

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

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

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

(a) draft regulations,

(b) an explanatory document and

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

(2) The explanatory document must—

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

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

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

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

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

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

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

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

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

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

(c) the draft regulations contain provision to—

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

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

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

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

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

(vi) creates or amends a power to legislate.

(7) The Minister must have regard to—

(a) any representations,

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

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

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

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

(a) revised draft regulations, and

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

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

(a) revised draft regulations, and

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

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

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

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

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

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

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

“Scrutiny procedure: introductory

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

Determination of scrutiny procedure

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

(a) the negative resolution procedure:

(b) the affirmative resolution procedure;

(c) the super-affirmative procedure.

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

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

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

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

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

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

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

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

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

Super-affirmative procedure

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

(2) The Minister must have regard to—

(a) any representations,

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

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

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

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

(a) stating whether any representations were made; and

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

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

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

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

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

(a) a revised draft statutory instrument; and

(b) a statement giving details of—

(i) any representations made; and

(ii) the revisions proposed.

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

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

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

(11) In this Part—

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

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

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

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

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

Amendment 20, page 39, line 13, leave out

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

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

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

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

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

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

(b) ”.

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

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

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

“a scrutiny committee determines that”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Draft Order and Explanatory document laid before Parliament

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

(a) a draft of the Order, together with

(b) an explanatory document.

(2) The explanatory document must—

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

(b) introduce and give reasons for the provision;

(c) explain why the Minister considers that—

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

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

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

(d) identify and give reasons for—

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

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

Determination of Parliamentary procedure

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

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

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

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

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

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

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

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

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

Negative resolution procedure

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

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

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

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

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

Affirmative resolution procedure

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

(2) The Minister must have regard to—

(a) any representations,

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

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

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

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

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

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

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

(a) a revised draft Order; and

(b) a statement giving details of—

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

(ii) the revisions proposed.

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

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

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

Procedure in urgent cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consequential amendment to Amendment 3.

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

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

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

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

(a) condition 1 is met, and

(b) either condition 2 or 3 is met.

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

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

(b) has laid before the House of Commons—

(i) a draft of the instrument, and

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

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

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

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

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

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

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

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

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

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

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

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

“a scrutiny committee determines that”.

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 23, page 43, line 26, leave out

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

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

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

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

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

“a scrutiny committee determines that”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) condition 1 is met, and

(b) either condition 2 or 3 is met.

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

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

(b) has laid before the House of Commons—

(i) a draft of the instrument, and

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

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

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

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

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

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

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

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

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

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

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

Government amendment 391.

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

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

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

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

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

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

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

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

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

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

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

This amendment is preparatory to Amendment 367.

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

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

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

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

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

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

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

(3A) Those conditions are that—

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

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

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

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

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

(f) the provision is not of constitutional significance”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the Equality Acts 2006 and 2010;

(b) the Human Rights Act 1998; and

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

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

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

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

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

New clause 76—Non-regression of equality law—

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

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

(a) any statutory instrument under this Act;

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

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

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

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

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

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

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

(b) reduce female genital mutilation (FGM),

(c) reduce human trafficking,

(d) reduce child sexual exploitation, and

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

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

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

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

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

[Mr Leslie]

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

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

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

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

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

[Mr Leslie]

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

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

[Mary Creagh (Wakefield) (Lab)]

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

[Mr Leslie]

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

[Mary Creagh]

rose—

[Mr Leslie]

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

[John Redwood (Wokingham) (Con)]

rose—

[Mr Leslie]

I cannot resist.

[John Redwood]

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

[Mr Leslie]

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

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

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

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

[Mr Dominic Grieve (Beaconsfield) (Con)]

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

[Mr Leslie]

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

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

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

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

[Mr Leslie]

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

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

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

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

[Hilary Benn (Leeds Central) (Lab)]

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

[Mr Leslie]

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

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

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

[Mr Leslie]

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

[Mr Jenkin]

There is the Scotland Act!

[Mr Leslie]

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

Clause 7(1) states:

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

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

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

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

“We proposed that ‘a general restriction on the use of delegated powers’ could be achieved using ‘a general provision … placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework’”.

I followed that advice by tabling amendment 65.

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

That subsection begins with the phrase:

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

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

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

[Mr Grieve]

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

[Mr Leslie]

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

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

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

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

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

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

[Mr Leslie]

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

[Mr Jim Cunningham]

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

[Mr Leslie]

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

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

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

[Mary Creagh]

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

[Mr Leslie]

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

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

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

[Mr Leslie]

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

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

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

[Chris Bryant (Rhondda) (Lab)]

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

[Mr Leslie]

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

[Helen Goodman (Bishop Auckland) (Lab)]

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

[Mr Leslie]

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

[Chris Bryant]

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

[Mr Leslie]

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

[Several hon. Members rose—]

[Mr Leslie]

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

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

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

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

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

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

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

[Mr Leslie]

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

[Hon. Members]

Order!

--- Later in debate ---

[Mr Leslie]

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

[Tom Brake]

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

[Mr Leslie]

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

[Anna Soubry (Broxtowe) (Con)]

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

[Mr Leslie]

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

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

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

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

--- Later in debate ---

[Mr Baker]

I am very grateful to my right hon. Friend. I will come on to the specific differences between clause 7 and clause 9 in relation to the power to amend the Act, but I will say now that the Act itself cannot be amended under clause 7. I will come on to develop that point later.

Clause 7(5) lists some possible uses of the power. These could range from fairly mechanistic changes to correct inaccurate references, to more substantial changes to transfer important functions and services from EU institutions to UK equivalents. Both types of change are important to keep the law functioning appropriately. At this stage, we do not know for certain what corrections might need to be made. The negotiations continue and there is a large volume of law to correct in a short space of time.

[Mr Leslie]

Will the Minister give way?

[Mr Baker]

If I may, I will explain my approach to interventions, which I should have mentioned at the beginning of my speech. My speech has about 24 sections to address the 130 amendments that have been tabled. With respect to the hon. Gentleman, I would like to finish speaking on clause 7 stand part before I come on to his amendment. If he will allow me, I will give way to him then.

Secondary legislation made under this power is subject to entirely normal parliamentary procedures. I will come on to talk more about how we ensure sufficient scrutiny of secondary legislation when I speak to the amendments. The Government have always been clear that we will listen to the concerns of Parliament during the passage of the Bill and reflect on its concerns. We are committed to ensuring that Parliament has the right opportunities to scrutinise the Bill and its powers, so I am glad to have the opportunity to address concerns that have motivated many Members to table amendments to the scrutiny provisions in the Bill, alongside the debate on the powers themselves.

We should, however, all be in no doubt that without this power vital functions could not be carried out because they would not be provided for in our law. The UK could have obligations to the EU still existing in statute that would not reflect the reality of our new relationship. There would be confusing errors and gaps in our law. I say again that we do not take lightly the creation of delegated powers, but neither do we take lightly the imperative to deliver a stable, orderly exit that maximises certainty for the UK. Clause 7 is essential to achieving that task.

New clause 18, tabled by the hon. Member for Nottingham East (Mr Leslie), calls for an independent report into the constitutional implication of the powers in clause 7. There have already been a number of such reports and this is likely to continue. For example, the report he suggests sounds similar to the excellent and thoughtful report published recently by the Exiting the European Union Committee. A requirement for one more report after Royal Assent would, it seems to me, add little to the Bill and the definition of its powers. I reassure the House that the Government have listened to Members and to the Committees that have reported on the Bill.

I will turn a little later to amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, but I am glad to report that the Government said yesterday that we would accept the amendments to enhance scrutiny of the powers through a sifting committee. Taken together with Government amendment 391 on the content of explanatory memorandums, we believe the amendments deliver more than the sum of their parts, so the House can be assured of the effective scrutiny of the powers in the Bill. I hope that reassures the hon. Member for Nottingham East, but I will give way if he still wishes to intervene.

[Mr Leslie]

The Minister mentioned clause 7(5) in relation to the regulatory powers to replace, modify or abolish public service functions. He will know that one of my amendments would delete the Government’s ability to abolish functions by those orders. I wonder whether he could give us examples of public service functions or regulatory activities currently undertaken that the Government may wish to abolish.

[Mr Baker]

I will come back to that later, but I can tell the hon. Gentleman for a start that the translation functions of the European Union and various institutions will no longer be required.

I come now to amendment 1, from my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It has support from all sides of the Committee including, I do not mind telling him, from me, in spirit. The Secretary of State has asked me to put on record that he, too, is sympathetic to the idea of narrowing the Ministers’ discretion. My right hon. and learned Friend seeks to restrict the power of Ministers to make regulations to amend retained EU law to cases where the EU law is deficient only in the way set out in the Bill.

We have listened carefully to my right hon. and learned Friend, my hon. Friend the Member for Weston-super-Mare (John Penrose) and others, and the specific proposal in amendment 1 and amendment 56, tabled by the hon. Member for Nottingham East, is to convert the illustrative list of potential deficiencies in the law in clause 7(2) to an exhaustive list. As my right hon. and learned Friend knows, we do not think that it is possible to do that at this stage.

We know that there will be thousands of deficiencies across our statute book and it is impossible at this stage definitively to list all the different kinds of deficiencies that might arise on exit day. To attempt to do so risks requiring significant volumes of further primary legislation on issues that will not warrant taking up parliamentary time. The specifics of the deficiencies will inevitably vary between cases and it will therefore not be possible to provide a definition that accompanies them all, as amendments 264 and 265, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), also seek to do. An exhaustive list would risk omitting important deficiencies, so rendering the powers in clause 7 unable to rectify the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation, such as technical detail, readability and, crucially, the management of time.

We cannot risk undermining the laws on which businesses and individuals rely every day. Our goals are to exit the EU with certainty, continuity and control. However, I listened extremely carefully to the speech made by my right hon. and learned Friend the Member for Beaconsfield, my constituency neighbour, and to his appeal for us properly to consider this issue. I hope that he will not mind my saying that I think that we have already properly considered the issue, but we are perfectly willing to work with him and others to continue to reflect on this point with an eye on Report. We heard a very informative intervention on this point from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). My right hon. and learned Friend will know that we are wrestling with the susceptibility of what we do to judicial review, which might undermine the certainty that we are trying to deliver.

--- Later in debate ---

[Chris Stephens]

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

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

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

[Mr Leslie]

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

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

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

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

Clause, by leave, withdrawn.

New Clause 63

Environmental standards and protections: enforcement

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

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

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

(b) monitoring and measuring compliance with legal requirements,

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

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

(e) enforcing legal commitments.

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

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

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

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

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

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

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

Brought up, and read the First time.

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

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Mr Leslie]

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

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

With this it will be convenient to discuss the following:

Amendment 345, in clause 8, page 6, line 32, at end insert—

“(2A) Regulations under subsection (1) may, in particular, include regulations to match or exceed World Health Organisation air quality standards.”

This amendment is intended to ensure that the UK continues to meet international air quality standards after withdrawal from the EU.

Amendment 292, page 6, line 38, at end insert—

“(e) impose or increase taxation”

This amendment would prevent the imposition or increase of a tax by regulations made under Clause 8 to comply with international obligations.

Amendment 390, page 6, line 38, at end insert—

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

Amendment 352, page 6, line 40, at end insert—

“(5) Any power to make, confirm or approve subordinate legislation conferred or modified under this Act and its schedules must be used, and may only be used, insofar as is necessary to ensure that standards of equalities, environmental protection and employment protection, and consumer standards will continue to remain in all respects equivalent to those extant in the EU.

(6) In particular, no agreement relating to international trade or investment with the EU or with a third-party state or states shall be made that permits or requires standards of equalities, environmental protection and employment protection, and consumer standards to fall below those extant in the EU at the time.”

This amendment would ensure that in exercising the powers under this provision, the Government maintains equivalent standards to the EU, and in particular, in making trade agreements.

Clause 8 stand part.

[Mr Leslie]

What a privilege it is to have the opportunity to speak on such a momentous evening when Parliament has had the guts and foresight to stand up to the Executive, take back control and give hope to those who thought that all hope was lost, and to see Members from all parties working together in the national interest.

[Mr Charles Walker (Broxbourne) (Con)]

It is wonderful to see so many former Ministers on the Conservative Benches discovering their love of parliamentary sovereignty when they are no longer on the ministerial merry-go-round. I have far greater respect in this place for those parliamentarians who have never held ministerial office and actually respect this place, even when things are not going their way.

[Mr Leslie]

I have even more respect for those who have never held ministerial office and who actually vote with their conscience, rather than looking at the ministerial ladder ahead of them and deciding to suppress their views for other reasons. Anyway, we have been there and dealt with that issue.

In speaking to new clause 20, I want to make a couple of introductory remarks. Over the last 44 years, I think, of Britain’s membership of the EU, the UK has accrued a massive array of international obligations, rights and authorisations via a series of 759 treaties—this is absolutely right—with 168 non-EU countries. Of course, after 29 March 2019, those treaties, because we have accrued them by virtue of our membership of the EU, will fall away. They will cease to exist; they will be no more; they will have ceased to be; they will have expired—they will be ex-treaties. The United Kingdom will no longer be party to those agreements with those third countries, unless of course we have made efforts to replace them beforehand to provide for a smooth continuation.

New clause 20 would require Her Majesty’s Government to publish one month after Royal Assent—we can give them that month to get themselves together—a comprehensive assessment of each of those treaties, agreements and obligations; to set out if there are any requirements they want to amend or renegotiate; and to make an assessment of whether the powers in clause 8 might need to be used. Sir David, you will know, in your eagle-eyed way, that clause 8 gives powers to Ministers, for two years at least, to make a series of orders and regulations to prevent or remedy any breach in those international treaties, as if achieved by an Act of Parliament. I pay tribute to the late Paul McClean, the Financial Times journalist who sadly died in September, who, in one of his final reports, carried out an extremely comprehensive analysis and assessment of some of these many treaties and international obligations.

[Tom Brake]

Is the hon. Gentleman wondering—he might be about to come to this—whether the Government have carried out an assessment of the impact of the UK’s falling out of all these treaties?

[Mr Leslie]

That is indeed a question I was coming to. I am sure that the Minister will tell us that the Government have made an itemised assessment of all those 759 treaties.

Those treaties break down as follows: 295 bilateral and multilateral trade deals, whose approval is needed to recreate any multilateral arrangements that will fall away as we leave the European Union; 202 regulatory co-operation agreements, including on data sharing, anti-trust and so forth; 69 treaties on fisheries, including access to waters and sustainable stocks; 65 treaties on transport and aviation services agreements; 49 treaties on customs agreements, including on the transportation of goods; 45 treaties on nuclear agreements, including on the use of nuclear fuel with other countries, parts and know-how; and 34 treaties on agriculture.

--- Later in debate ---

[Tom Brake]

Just as the hon. Gentleman wonders whether the Government have produced impact assessments for those treaties, he might also be wondering whether they have produced contingency plans for if they are unable to rewrite them to reflect the UK’s new position.

[Mr Leslie]

Indeed, and after the Minister has finished the first page of his speech, on the impact assessment, he will turn it over and tell us about the contingency plans that will be in place.

Imagine, Sir David, that you are a Government Minister at this point in time and you are thinking, “Well okay, I’ve got all these 759 treaties. What are we going to do? How are we going to deal with this? How much time is it going to take to renegotiate them or at least make sure they can be carried over?” Let us assume that all the other parties to those agreements are happy simply to cut and paste them across. Of course, we cannot necessarily assume that, but let us do so. If, for each agreement, it took a civil servant one day to analyse the contents, a day to contact the third party country concerned, of which there are 160, perhaps a day to track down the decision makers in the relevant Departments here in the UK and the other country, perhaps a couple of days in dialogue with that other country—it would be pretty good if they could do it in a couple of days—and maybe a day to bring together our Ministers and their Ministers, we would be talking, on top of the costs of travelling to those other countries and legal costs, some tens of thousands of hours of civil service time.

[Sir Desmond Swayne (New Forest West) (Con)]

rose—

[Mr Leslie]

Civil service time that should, of course, always be spent on the right hon. Gentleman’s policy issues.

[Sir Desmond Swayne]

Because the hon. Gentleman has, notwithstanding his personal views, accepted the will of the electorate, no doubt the logic of where he is leading us is to put off leaving the European Union for some indeterminate period of time until all these issues are sorted out.

[Mr Leslie]

Perhaps the right hon. Gentleman’s constituents knew all this before they voted in the referendum. I am not convinced that many members of the public, whether they voted remain or leave, actually spotted the downstream consequentials of exiting the European Union in this way. Of course, they employ us, as Members of Parliament, to answer these questions. That is our job and it is what we are here to do.

[Sir Desmond Swayne]

On that basis, is it therefore the hon. Gentleman’s intention to reopen the question so that the public can revisit their decision?

[Mr Leslie]

My view is that the British public always have the right to think again and decide the fate of this country as they see fit, but for the time being, in this Bill and with new clause 20, it is reasonable for us to scrutinise the Executive and to say, “How are you going to do it? How are you going to make sure that all the important aspects of those 759 international treaties will be smoothly transposed after 29 March 2019?”

[Martin Whitfield (East Lothian) (Lab)]

Does my hon. Friend agree that the other parties to these treaties may not quite have the incentive to be as quick as we might need them to be?

[Mr Leslie]

My hon. Friend is absolutely right. As these are potentially fresh treaty discussions, other countries may wish to take the opportunity to reopen or revisit the treaty provisions. We may, of course, have entered into those agreements in different political times, so who knows what they may be?

[Ian Murray (Edinburgh South) (Lab)]

As always, my hon. Friend makes a compelling case for changing the Bill. Given that the Government are battered and bruised this evening after their outstanding defeat, if the Minister comes to the Dispatch Box and says that they do have assessments of the impact of our leaving these international treaties, should we believe them?

[Mr Leslie]

I will believe the Government if they publish the assessments, and I am prepared to make an appointment to go to a private reading room in the ex-Treasury building if needs be, but this must be a bit more than an analysis of how many treaties there are: it must be an assessment of their impact and importance.

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

My hon. Friend is making an important point. Of course, I support his new clause.

I have long been in favour of the arms trade treaty, parts of which fall within EU competence. The EU as a whole was involved in the negotiations on the treaty, and we are a party to it as an individual country. We also have the consolidated EU and national arms export licensing criteria as well as domestic legislation. The arms trade is one of the issues that cut across many different areas of competence, and we are party to a number of treaties relating to it. Is that not exactly the sort of issue that should be examined?

[Mr Leslie]

It is, and I think it is particularly incumbent on those who advocated Britain’s exit from the EU to tell us what their plan was. How were they going to solve that problem? It should not be entirely incumbent on the myriad Conservative Members who were fighting for Britain to leave the EU only to disappear when the really tough job came along of deciding how we were to pick up the pieces and ensure that the treaties could continue in some way, shape or form.

[Hannah Bardell (Livingston) (SNP)]

Does the hon. Gentleman agree that the Government should carry out an impact assessment to establish whether they have the capacity to negotiate the treaties, given, for example, the Secretary of State for International Trade’s recent admission that they do not have the capacity to negotiate trade deals?

[Mr Leslie]

Indeed. For example, last time I heard, only three officials at the Department for Transport were dedicated to negotiating aviation agreements. Those three poor civil servants, although hopefully there are four or five by now, will have a heck of a job on their hands to repair all the open skies agreements and international aviation treaties—that is in just one sector, so think of the implications. But I am sure that those who were advocating a leave vote have a plan to cope with the whole scenario.

[Tom Brake]

Will the hon. Gentleman give way?

[Mr Leslie]

I will give way one more time, but then I must make some progress, because others want to speak.

[Tom Brake]

I just wanted to help the hon. Gentleman. Given his position in the Chamber, he might not have been able to see that both Ministers were frantically texting earlier. I suspect that they did not have the list of treaties to which he is referring. He might need to supply it at the end of the debate so that they can start doing some work on this.

[Mr Leslie]

I think that the Minister might actually have been tweeting his respect for the result of the vote on amendment 7 that we have just had. I shall look at Twitter later to check that he was absolutely respecting the fact that Parliament wants to take back control.

[Hannah Bardell]

Will the hon. Gentleman give way?

[Mr Leslie]

I want to make a bit of progress as others want to speak.

We in the UK are thinking that we must replace a lot of these treaties. When we leave the EU, our exit will affect not just us but the EU, because a great many of its treaties, obligations and agreements with third countries around the world were predicated on the existence of 28 members. Minus the UK, the other members may need to renegotiate their treaties as well. Ministers might not give two hoots about the implications of that, but those on the EU side of the negotiating table probably do care about it, and that will have ramifications for our negotiations.

Of course, the Foreign Secretary was always telling us that all the other countries around the world were queuing up to do deals with us. He had to fight them off as they asked, “Please may we have a new trade agreement with you?” I have not personally seen that particular queue, but perhaps when the Minister winds up the debate he will be able to tell us how many countries have been knocking on our door seeking new trade agreements.

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

The hon. Gentleman obviously thinks very little of this country if he feels that other countries around the world do not want to do trade deals with the United Kingdom. Why does he think that?

[Mr Leslie]

Those countries already have very good trade agreements with us by virtue of our membership of the European Union, and they are worried about losing the opportunity to have good trade arrangements not just with us, but with the rest of the EU, if those agreements are ripped up and thrown up into air, creating uncertainty. I will be the first person, as a member of the International Trade Committee, to go around the world and try to get those trade agreements, if indeed we do have Brexit, but until that point, I want the right hon. Gentleman to say whether he explained to his constituents before the referendum that all these international treaties were going to be ripped up. Did he say that to them?

[Sir Hugo Swire]

The hon. Gentleman needs to answer the question that I asked him first, with all due respect. He said there would be concern among many of these other countries—he did not say which—about what kind of trade agreement there would be, and about access to markets and so forth. Of course they will have concerns; we will also have concerns—that is part of any bilateral trade negotiation. Why does he think, despite these concerns, that they will not wish to do deals with us?

[Mr Leslie]

I hope that countries do, and we will need them to, otherwise we will literally be planting carrots in our back gardens. If we do not have trade deals with the rest of the world, we will have to produce more domestically, rather than having the living standards we have previously enjoyed. I am a very pro-trade Member of Parliament, and the right hon. Gentleman should know where I stand on many of these questions. That is why I am asking what the consequences will be not just if we move away from the trade arrangements we have—the finest, frictionless free trade agreement of anywhere in the world that we have right now with the single market and the customs union—but if we then rip up the free trade agreements with non-EU countries that we have enjoyed by virtue of our EU membership. That is another 12% of our exports. Some 50% of our exports are with the EU through our existing trade arrangements, and then there is another 12%—actually, there is another 14% because there are other territories of those non-EU countries as well. That is a big chunk of our trade. I am very concerned about how effectively we can carry out the grandfathering of those FTAs with the rest of the EU.

We must also bear in mind that there are 164 members of the WTO, and they have rights of veto and objection on many occasions. In fact, we recently tried to lodge a suggestion on dividing tariff-rate quotas. This is getting technical, but that is basically dividing up the EU’s share of low or zero-tariff allowances when countries such as New Zealand or Australia try to import lamb. Amazingly, Australia, New Zealand and the United States of America have lodged an objection to the British divvy-up of those tariff-rate quotas. Of course, apparently America should have been knocking on our door, as we were at the front of the queue, supposedly, but it still lodged an objection to our very first relationship with the WTO.

[Mary Creagh]

My hon. Friend rightly raises the issue of these countries objecting to any changes to quota, because they will first and foremost seek to protect their own economies, not our economy. In the event that we get a percentage of the EU quota but for whatever reason—customs barriers; non-tariff barriers; the withdrawal of purchasing power—that quota of goods cannot be sold into the UK, those countries’ flexibility to then sell those goods to the EU is lost. That is why they are digging their heels in so early on this issue.

[Mr Leslie]

That is a real worry. This will not get media attention or airtime, but it is a big chunk of our economic footprint. It is not just a trade issue with the EU; it is a trade issue in respect of all the free trade agreements with the rest of the world.

[Mike Gapes (Ilford South) (Lab/Co-op)]

There is another complication. If we are saying that we are going to have regulatory alignment on cross-border issues with regard to Northern Ireland, specifically on agriculture, given that we are in the EU orbit in that sense, how on earth can we then have WTO trade arrangements elsewhere unless we give the same conditions that apply to the Irish Republic to every other country in the world, which the EU cannot accept?

[Mr Leslie]

There is a big issue relating to the most favoured nation status arrangement because of clauses in the existing EU free trade agreements. If we are given a deep and special relationship with the EU, the EU will be obliged to offer the same access to Korea and to Canada under the comprehensive economic and trade agreement. There are implications to all this. If we pull one thread, all sorts of things appear.

--- Later in debate ---

[Sir Desmond Swayne]

This is a filibuster.

[Mr Leslie]

I will finish shortly. I know that I am trying the right hon. Gentleman’s patience.

The 36 regional and bilateral free trade agreements with 63 other countries are exceptionally important, but there are also trade-related agreements, including mutual recognition agreements and standards for conformity assessments. The Department for International Trade has also said that there are multiple hundreds of mutual recognition agreements. The list is getting bigger and bigger, and it is all on the shoulders of the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker).

[Hannah Bardell]

The hon. Gentleman is going into great detail about the amount of time and effort that is going to be spent, and the number of treaties and trade deals that will need to be done. Does he agree with me on the broader point that we are treading water here? A huge amount of money and parliamentary time is going to be spent, and nothing else will be able to be done.

[Mr Leslie]

Let us think about all the important priorities for our constituents, including public service reform and living standards. This is one of the most frustrating things: we are treading water just to keep up what we already have. Indeed, things will not be as good as the arrangements we already have. What annoys me most is when Ministers try to gloss over this and pretend that it is all going to be fine, saying, “There’s no problem here. There’s nothing to see.” Lord Price, who used to be a International Trade Minister, tweeted about the 36 free trade agreements, saying that they were all fine and that:

“All have agreed roll over.”

The current Minister of State at the Department, the Minister for Trade Policy, retweeted that. However, when we ask the Secretary of State whether countries have agreed that they all roll over, we are told, “Well, we haven’t had any objections from them to suggest they might not roll over.” Will they want to renegotiate? We are told, “Well, we haven’t heard from them yet.” This is an incredible example of trying to put the best possible gloss on the situation, and to get past exit day and worry about it all afterwards. The Government will then pretend that everybody knew about this beforehand.

I will finish my remarks now because I want to hear the speech of my hon. Friend the Member for Swansea West (Geraint Davies); we need an assessment of these treaties and of what could be lost; we need an assessment of the risks and of what is at stake; and we need honesty and transparency from Ministers about the consequences. This is not what the public expected when they voted in the referendum, and that is why I urge Members to support new clause 20.

[Geraint Davies]

I shall speak to amendment 352, which seeks to maintain for future trade deals the EU rights and protections that are currently enjoyed in other trade deals. A problem that has already been mentioned is that we are going to move away from the comfort zone of the EU, a massive trading bloc which, on 8 December, agreed the key provisions for a trade deal with Japan that will embrace 30% of global GDP and 600 million people and that has integrated in it the Paris agreement. It does not have investor-state dispute settlement, but it does have various protections. One of my key fears about that particular agreement, which will come into effect in March 2019, is that such agreements take a long time to put together. If we want to come along after the event and say, “Can we join in?” the chances are that the terms will not be as good.

As for our negotiations with other countries, if we exit the EU and expect Chile or Uruguay or some other country to offer us the same trade terms that it has with the EU, which is a much bigger bloc, at a time when we are much weaker, we will be seen among the international trading community as a vulnerable victim of our own self-inflicted harm. They will say, “We will give these terms to the EU, but you are just a small player compared with the critical mass of the EU.” That would undermine not only the financial impact of the terms of trade, but the standards that we currently enjoy.

People will be aware that the REACH arrangements—the registration, evaluation, authorisation and restriction of chemicals—mean that manufacturers in Europe are required to prove that a chemical is safe before it is sold. In America, however, manufacturers can basically sell asbestos and other harmful products, and it is for the United States Environmental Protection Agency to tell them that they cannot. The worry is that our regime and our standards may change as we are thrust into the hands of the United States, and that workers’ rights, human rights and other rights may change due to China.

The Minister will know that the widespread use of hormones in meat production in America is giving rise to premature puberty among children, and that the widespread use of antibiotics is leading to much greater resistance to them. There is also chlorinated chicken, genetically modified food and other things, and we will be under enormous pressure from the United States to accept standards that are below those that we enjoy as a member of the EU. Donald Trump stood up at his inauguration and said that he would protect the American economy from the foreign countries that were taking America’s jobs, and he has already shown in the Bombardier case that he will play tough. The United States is a much bigger player than Britain, and the competition between the EU and the US is a matched fight when it comes to the negotiation of a deal such as the Transatlantic Trade and Investment Partnership. We will be a much smaller player, and we will have left the conditions of the EU.

Ministers currently have quite widespread powers to sign deals. The current International Trade Secretary signed a provisional agreement for the comprehensive economic and trade agreement without parliamentary approval, and we should be drawing such powers in for parliamentary scrutiny, amendment and agreement. There is a risk that a negotiated settlement that reduces the standards that our citizens enjoy will happen outside this place. I therefore tabled amendment 352, which seeks to maintain the same standards, rights and protections that we enjoy in Europe, as protection in case we end up being asked to vote on trade deals that have all sorts of dire consequences beneath the surface for public health, workers’ rights and consumer protection.

--- Later in debate ---

[Mr Walker]

At all—by regulation or in any other way.

I will turn briefly to the amendments and respond to new clause 20 in the name of the hon. Member for Nottingham East. My Department is leading cross-Government work to assess and act on the international agreements for which, as a result of the UK’s withdrawal from the EU, arrangements will need to be made to ensure continuity for businesses and individuals. Any that require implementing legislation or parliamentary scrutiny before ratification will go through the appropriate, well-established procedures. We are working with our international partners to identify the full range of our agreements that might be impacted by our exit from the EU, and we will be taking their views into account. It would not be appropriate at this stage to publish the type of assessment proposed in new clause 20. Doing so would prejudice the outcome of these discussions and how any action would be put into practice.

[Mr Leslie]

Will the Minister give way?

[Mr Walker]

I will give way once more, but that is it, because I want to give the hon. Member for Wakefield (Mary Creagh) a chance to make her speech.

[Mr Leslie]

I am just looking for a small concession. If the Minister will not do an assessment, will he at least publish a list? The Financial Times has its list of the 759 treaties. Could we have some information from the Government in the public domain about the task that has to be undertaken? That, at least, would be a welcome step.

[Mr Walker]

We will be coming forward with more information on this front in due course. However, a lot of the hon. Gentleman’s speech was specifically about trade issues, and we have a Trade Bill that deals specifically with those issues. If I might gently say, a lot of what the hon. Gentleman and the hon. Member for Swansea West (Geraint Davies) talked about related to the content of the Trade Bill rather than this Bill.

We do recognise the need to promote stability for businesses and individuals, and we will aim to transition agreements as seamlessly as possible. I listened carefully to the hon. Member for Swansea West—I am afraid he is no longer in his place—and I would like to reassure him that this clause has nothing to do with future trade agreements. It is purely to do with our existing international commitments and how we make sure we continue to meet them in the context of leaving the EU.

Clause 8 is a very specific power, which will be available only where a breach of our current international obligations arises from the UK’s withdrawal from the European Union. It ensures that we will be able to continue to honour international obligations, which might otherwise be affected by our withdrawal, and it is key to ensuring that we can take our place on the global stage as a fully independent nation. On that basis, I hope that the hon. Members for Nottingham East and for Swansea West will consider not pressing their amendments.

I want to address amendment 345 in the name of the Leader of the Opposition. It is well intentioned but unnecessary. The power in clause 8 has a narrow and specific purpose, and can be used where our international obligations might be breached as a result of leaving the EU. World Health Organisation guidelines are not international obligations; they are used to inform air quality standards in international and EU legislation, but they do not, of themselves, form an obligation to be complied with.

The UK has a strong track record on protecting our environment, and in leaving the EU, we will safeguard and improve on that. The whole purpose of this clause is to ensure that we leave the EU with maximum certainty, continuity and control, and that, as far as possible, the same rules, laws and international obligations apply on the day after exit as on the day before.

Of course, some of the existing mechanisms that allow scrutiny of environmental targets and standards by Governments will not be carried over into our law, and that is why the Secretary of State for Environment, Food and Rural Affairs announced on 12 November our intention to consult on a new, independent statutory body to advise and challenge Government, and potentially other bodies—

--- Later in debate ---

[Mary Creagh]

I thank the Minister for rushing through his speech so that I get the chance to have my five minutes to talk about amendment 292.

Clause 8 allows Ministers to make any regulations to prevent or remedy any breach in our international obligations as we leave the EU, but it also contains a Henry VIII power allowing for those regulations to do anything that an Act of Parliament can do. That includes amending or repealing any Act of Parliament ever passed. It is the most extraordinary and unusual power. I was going to raise the Northern Ireland Act 1998, so I am grateful to the hon. Member for North Down (Lady Hermon) for getting the Minister on the record on that.

The Government have been very scant on the details about the sorts of international obligations that may be affected. They have also been unable to say—I was listening carefully to the Minister—why regulations under clause 8 can impose or increase taxation. We do not want to end up in a situation where the Government can raise tax-like charges by statutory instrument. That gives away the supremacy of this place on taxation. The “appropriateness” test is too broad, and it undermines the supremacy of Parliament. We cannot have taxation by the back door.

Crucially, I did not hear the Minister say anything about tertiary legislation. We have focused a lot on SIs—the secondary stuff. Tertiary legislation enables a new public body that needs to be set up, such as a chemicals body, to charge fees. This may not be controversial at first, but there may come a time when such bodies want to increase the fees, as happened when the Ministry of Justice wanted to increase probate fees by, I think, 1,500%. Why is there a double standard in clause 8 as regards secondary and tertiary legislation? We want tertiary legislation to be given the same parliamentary control and the same time limits as secondary legislation. My amendment 292 seeks to restore the supremacy of the House on financial matters.

I want briefly to deal with the environmental regulation that the Minister talked about. The Government currently have a “one in, three out” rule. Many of our environmental regulations come from international mixed agreements signed and ratified, as he said, by the UK and the EU; some are bilateral and some are multilateral. The Environmental Audit Committee has been looking at our progress in reducing fluorinated gases. These are very powerful greenhouse gases with a global warming potential 14,000 times more harmful than carbon dioxide. They are in commercial refrigeration systems, in our car air-conditioning systems, and in 70% of the 60 million asthma inhalers that we use in this country every year. Targets for reducing those gases are set and monitored by the European Union, but we are also a signatory to the UN framework, so it is a mixed agreement. We have just ratified the Kigali amendment to reduce F-gases by 85% by 2036. That agreement is monitored by the EU, so the Bill will convert the regulation into UK law and we will need new regulations.

The explanatory memorandum states that the new regulations may be subject to the Government’s “one in, three out” rule. We cannot have the Government making hundreds, if not thousands, of new regulations that get caught under that absurd administrative rule, so I want the Minister to assure the House that it will be scrapped. I have written about that as the Committee Chair, and Lord Henley has said that there is no clarity about it and no decision has been made. That has to change.

[Mr Leslie]

This is an incredibly important series of discussions. We need more information on the 759 international treaties that may fall on exit day, and I am glad that the Minister indicated that more information would be forthcoming. I want to vote for new clause 22 on the European economic area and the single market, so I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 22

EEA Agreement

“(1) No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise.

(2) Regulations under this Act may not make any provision that would constitute a breach of the United Kingdom’s obligations under the EEA Agreement.

(3) Regulations under this Act may not amend or repeal subsection (1) or (2).”—(Heidi Alexander.)

Brought up, and read the First time.

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

European Union (Withdrawal) Bill

Chris Leslie Excerpts

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

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

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

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

Amendment 77, in clause 13, page 9, line 9, at end insert—

“(3) A Minister of the Crown may by regulations—

(a) make provision enabling or requiring judicial notice to be taken of a relevant matter, or

(b) provide for the admissibility in any legal proceedings of specified evidence of—

(i) a relevant matter, or

(ii) instruments or documents issued by or in the custody of an EU entity.”

Clause 13 stand part.

Amendment 348, in schedule 5, page 36, line 9, at end insert—

“(c) any impact assessment conducted by Her Majesty’s Government that in any way concerns the economic and financial impact of in anyway altering, modifying or abolishing any relevant instrument.”

This amendment would require the Government to publish its economic impact assessments of the policy options for withdrawal from the EU.

Amendment 76, in schedule 5, page 37, leave out paragraph 4.

That schedule 5 be the Fifth schedule to the Bill.

[Mr Leslie]

Merry Christmas to you, Dame Rosie, and to all hon. and right hon. Members.

Under the peculiar vagaries of the Government’s programme motion, we have ended up with a peculiar day 8 in Committee, with a potential four-hour chunk to debate amendments to schedule 5, which is quite a narrow area of concern—the publication of retained EU legislation and rules of evidence—and, in theory, only four hours in the second half to debate the massive number of remaining amendments. The Committee will understand why I probably do not want to spend too much time on this first group, because I suspect a large number of hon. Members will want to speak on the second group.

Nevertheless, I will have a crack at new clause 21 because it is always worth probing the Government on every part of a Bill. This new clause would ensure that, when Her Majesty’s Government publish EU retained legislation, they accompany it with a summarising explanatory document setting out, in terms that are readily understandable, its purpose and effect.

This might seem an obvious point, and someone might say, “Of course Ministers intend to do this. Surely, if we have all the legal gobbledegook we normally get in statute and in primary and secondary legislation, there will be a summary not just for Members of Parliament but for the public to read and understand so they know what they are talking about.” But that practice has only been in effect for a small number of years and, although it started with the good intention of providing explanatory statements and explanatory notes, it has slipped back a bit from the original intention. When hon. Members pick up a dense and complex proposal, they will often find that the explanatory notes basically say the same thing, perhaps with a few dots and commas changed here and there, and feel that the proposal is as impenetrable as it ever was.

The point is that clarity is needed if we are to transfer a great set of EU legislation into UK law. Such clarity is an important principle that Parliament should underline and establish, which is what new clause 21 seeks to do. More than that, when we legislate we should make it clear not just for the lawyers but for everyone so that all our constituents know and understand the consequences of the laws we are putting in place.

Such clarity was not always evident in the referendum campaign in the run-up to June 2016. In fact, many would still say that there was a lot of obfuscation and opacity, and that the consequences of Brexit were not clear at all. In my view, as much clarity and plain English as possible should be obtainable.

[Several hon. Members rose—]

[Mr Leslie]

Before I give way, I have to confess that I am a serial offender when it comes to not necessarily speaking in plain and clear terms, so I am not pretending in any way to be the world’s greatest simple communicator on such things. I am sure I will transgress this afternoon.

[Mike Gapes (Ilford South) (Lab/Co-op)]

Another advantage of new clause 21 is that it would enable the Government to give us a clear explanation and perhaps say that “regulatory alignment” and “regulatory convergence” mean the same thing.

[Mr Leslie]

My hon. Friend takes the words out of my mouth. He has spotted that the famous paragraph 49 of the phase 1 agreement between the negotiators on the EU side and the negotiators on the UK side talks about maintaining regulatory alignment, which is a phrase that manages to span all sorts of different interpretations. The EU and Republic of Ireland side believes “full alignment” to mean full alignment and that we will essentially have the same arrangements as we have now. But when the Prime Minister returned to the House of Commons, she sort of said, “Oh, no, it is a very narrow meaning in the terms set out in particular paragraphs of the Belfast agreement.” It is amazing how words can mean one thing to one listener and another thing to an entirely different listener.

[John Redwood (Wokingham) (Con)]

I agree that clarity is usually an admirable virtue, but if the thing the Government are trying to describe is not very clear in itself—perhaps because it is very complicated and impossible to make clear, or perhaps because it is deliberately obfuscating—what happens then? We cannot have a dishonest account of what a complex clause is doing.

[Mr Leslie]

We should not assume that those watching our proceedings, or reading them in Hansard, entirely trust the Government or Members of Parliament simply to know and understand what is happening. People outside have a right to know, and of course we expect businesses and members of the public to interpret the legislation we pass.

This is a signal moment, and the right hon. and learned Member for Beaconsfield (Mr Grieve) rightly pointed out on, I think, day 2 in Committee that we are about to copy and paste a phenomenal body of legislation, which has accrued over decades, from the EU corpus of law into the British legal context. That requires us to pause for a moment to think about whether we are properly articulating to our constituents and others what exactly is happening in this process.

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

The hon. Gentleman refers to trust in the Government. Does he think our constituents will be reassured by the Prime Minister’s confirmation on Monday that the Cabinet’s discussions on our future trade deals do not involve the Cabinet having any assessment of the impact of different potential models?

[Mr Leslie]

Governments would normally be expected to have information and facts, with evidence being collected and presented and with an assessment made based on information that has been analysed and digested in a professional way, but it appears that, although we were told they exist, the impact assessments do not actually exist but are sectoral analyses. What is the difference between an impact assessment and a sectoral analysis? Well, we have been discussing that for quite some time.

Returning to EU retained legislation, the right hon. and learned Member for Beaconsfield rightly pointed out that we have lived with important legal understandings, such as on equalities law and environmental law, for a number of decades. Those understandings have been tenets of our expectations of the civilised society in which we live. Of course, they will now be transferred from European law into UK law. If they had originated in this House, they would have been enacted in primary legislation and any changes would have had to be made through primary legislation. But the Government’s proposal is to take this new category of EU retained law and bring it into UK law, and it will not have the same status as primary legislation. In many ways, it will be repealable or amendable, often by secondary legislation—by statutory instrument. This is not a point about Brexit; it is about the process of transposition. It is important that the public know what is going on when we are doing this. If a transfer is taking place, information should be set out in the explanatory notes, not just about the technical details, but about the weight that those legal rights will have once they come back into UK law.

There are a number of other aspects to this—

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

The hon. Gentleman is making an interesting and relevant point, although it is of course true that all this legislation came in via secondary legislation in the first place and Parliament will have considerably more control over the secondary legislation that amends it than we currently have over the method that created it. I would imagine, as I am sure he does and the Government do, that Acts of Parliament will become more important, particularly if we want to make sure that this is not challengeable in the courts, as secondary legislation is much more vulnerable to challenge through the courts than primary legislation.

[Mr Leslie]

Yes. Although we disagree on many things, I think we can agree that if we are going to do this exercise, it needs to be done thoroughly and robustly, making sure that the intent of Parliament and the laws we are transposing are robust enough to withstand the test of time. Having explanatory statements to accompany those is an important development that has helped us in our legislative process recently. If we are going to have a sifting committee—it is not really a sifting committee; the procedures committee will be doing this—looking through all these statutory instruments and picking out which ones it thinks should not be passed through the negative procedure, this explanatory process ought to be in place to help hon. Members figure out which of these hundreds or even thousands of aspects of legislation are important enough to flag up to hon. Members more widely. That is a small point but it needs making. Other issues arise relating to “tertiary” legislation and the powers the Bill is giving to agencies and regulators to make, or to amend or remedy, laws. Again, I would like these things to be flagged up in plain English, wherever possible, so that parliamentarians can know about them. In essence, new clause 21 is about transparency, clarity and shining a light on this complicated bandwidth of activity that is about to hit all hon. Members, and that is important.

The only other point I wanted to make on this group—

[Craig Mackinlay (South Thanet) (Con)]

The hon. Gentleman has been a Member of this place for far longer than I have. We have lived through 40-odd years of what he is now describing as “dense and complex” legislation which applies to the UK, but only at this stage does he seem to be concerned about what that legislation really means. Why has he not been so similarly vexed and exercised these past 40 years?

[Mr Leslie]

I have been vexed and exercised for quite a long part of the past 40 years, but that is my problem. The hon. Gentleman should know that as we go forward we are creating a new type of legislation. It is true that many of the European directives and regulations have been adopted over the years in different ways, but we are now importing this great body of EU retained law. It is going to affect him and his constituents, as well as my constituents. The first point to make is: can we understand what it is? That provides a useful opportunity in this exercise—

[Mr Dominic Grieve (Beaconsfield) (Con)]

The hon. Gentleman may agree with me that if there are deficiencies in the way EU law has been imported into our law, the last thing we want to do is to perpetuate them by keeping the uncertainties after we have gone. Yet schedule 5 raises a number of uncertainties, which this House would do well to address.

[Mr Leslie]

We are doing our duty by at least trying to comb over these issues now.

I wish to commend the Labour Front-Bench team on their amendment 348, which seeks to ensure that impact assessments are made properly and thoroughly before we take many of the decisions in this whole Brexit process. We already know enough about what has happened with the Brexit Secretary promising impact assessments and their turning out to be sectoral analyses. Many of us will have gone to the reading room and looked at the hastily written 50-odd documents, which would be good if someone was writing a master’s degree dissertation on the aviation sector—they are full of facts and information—but do not really provide much more analysis than people can already get off Google.

Where we did get an insight, although it may have been a slip of the tongue, was when the Chancellor of the Exchequer appeared before the Treasury Committee on 6 December and said that he has

“modelled and analysed a wide range of potential alternative structures between the European Union and the United Kingdom”

and that

“it informs…our negotiating position”.

So obviously there does exist within government some level of impact assessment and analysis that has not yet been placed in the public domain. It might be that the Brexit Committee wishes to explore that further or that the Treasury Committee wishes to do so, but it is important that we know whether this is simply a reference to the pre-referendum work that was done under the former Chancellor George Osborne or whether further assessments have taken place, independently undertaken by the Treasury. We need to know what analysis the different Departments have undertaken and what sort of modelling on the different sectors of our economy has been done.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

My hon. Friend is making an excellent speech. Does he agree that the Government produce assessments, whether or not they are “sectoral assessments”, on issues that are a lot more trivial than such an important thing befalling our country as Brexit? It is therefore imperative that we have detailed assessments on how this will affect our country.

[Mr Leslie]

Yes. That again gets to this question: are we accidentally bumbling our way through, where nobody has thought about doing an assessment, or, worse, is this work being done but then hidden, covered up and held back from Members of Parliament and from the public at large? I suspect that any serious analysis worth its salt will show that there are some damning consequences of exiting the single market and customs union, and I think that needs to be shared with the wider public.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does the hon. Gentleman agree that the Brexit Secretary was rather lucky when he appeared before the Select Committee, because having agreed to produce papers, he got out of it by sticking to a narrow definition of “impact assessment”? It was semantics that enabled him to get away with just producing the new documents, which he had hastily produced in the past few weeks, containing bland descriptions of where we are. As the originals are important documents, as these questions have been looked at and as we were told a summary had been sent to the Prime Minister, does the hon. Gentleman agree that the House’s motion meant that whatever documents the Government had that bore on the subject, they should have been produced? The Brexit Secretary should not have been allowed to get away with saying, “Strictly speaking, they’re not impact assessments.”

[Mr Leslie]

I do agree with that. We should not just skim over this question. These are some of the most profound decisions that Parliament will make for a generation and, if we are going to do our jobs correctly as Members of Parliament, having the right facts, getting the evidence, assembling the analysis, making sure we can weigh up the pros and cons of all these matters, and getting readily understandable, plain English explanatory statements of what is actually being proposed are prerequisites. They should be there to make us do our jobs properly.

[Sir Desmond Swayne (New Forest West) (Con)]

rose—

[Mr Leslie]

I will give way one last time, and then I will conclude.

[Sir Desmond Swayne]

How does the hon. Gentleman imagine that the assessments are going to be any less divisive than the issue that we are seeking to assess? The assessments are based on assumptions, and we profoundly disagree about the assumptions.

[Mr Leslie]

That is getting us into this question about experts again and whether there is such a thing as a fact or whether everything in this world is an opinion. It is important to make sure that if there are facts and if we can prove cause and effect—for example, if we know that the introduction of inspections or a hard border is going to slow down lorries going through a particular port—we can, QED, prove that there is going to be a particular consequence for the economy. That sort of analysis ought to be shared with the wider world.

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

rose—

[Mr Leslie]

I did say I was trying to finish, but my hon. Friend tempts me.

[Stephen Doughty]

I wanted to give my hon. Friend an example before he concludes. Last week, the Prime Minister claimed that the UK would make “significant savings” as a result of our leaving the EU, but I have asked questions and Treasury Ministers have not been able to explain what those savings will be or to put a figure on them. Yet Financial Times analysis suggests that we will lose £350 million per week, which contrasts with what was on the side of that red bus.

[Mr Leslie]

That is right. That Financial Times analysis was worth sharing and should be shared, but we should not rely on journalism alone to do the job. We have a professional civil service; let us not gag it or try to lock it under the stairs somewhere. We should let that expertise come out so that we can all see and hear it.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

rose—

[Mr Leslie]

Members are enjoying new clause 21 so much! I thought it was a simple one.

[Mr Duncan Smith]

I only want to help the hon. Gentleman. Does he think it would have been a lot easier had the Exiting the European Union Committee asked the Secretary of State for the impact opinions that he may well have had?

[Mr Leslie]

Again, when is an assessment an opinion? In some ways, it diminishes and slightly denigrates the professionalism of our civil service to suggest that its output is merely conjecture or opinion. There are some things in this world that are facts, from which we can draw conclusions and which any rational observer would not really question.

[Mrs Madeleine Moon (Bridgend) (Lab)]

rose—

[Mr Leslie]

I give way for the final time.

[Mrs Moon]

May I read my hon. Friend the steel sector view? It says that

“it will be a lengthy and potentially very costly process for UK manufacturers to break into new markets…Returns on sales to new markets will frequently be poorer than from existing contracts with customers in neighbouring countries.”

Is not that something that the British people need to know?

[Mr Leslie]

That is the level of analysis and assessment that deserves to be shared and that was not available to the public prior to the referendum. It should not be dismissed but made more widely available. Members, and beyond them voters, can weigh up the different opinions. Some Members might rubbish representatives of the steel sector and say, “What do they know? I know better,” but we can weigh these things up and bring them into balance. We have the opportunity to debate transparency. Let us allow sunlight to flood over this issue and make sure that we are better informed going forward than we were before the referendum.

[Mr Grieve]

It is a pleasure to participate in the Committee’s consideration of schedule 5 and clause 13, although the reality is that the clause says very little and the schedule says a great deal.

As we have just heard, part 1 of schedule 5 provides for the publication of retained direct EU legislation by the Queen’s printer, which should be completely uncontroversial because its purpose is to promote transparency and access so that people in the United Kingdom can know what the law is. That is not some slight matter. One of the points that has been gently canvassed in the debate so far is the extent to which EU law may have created, in the way it has been brought into UK law, a degree of uncertainty as to what it is, in which case that is the last thing we should retain when we carry out this retention of the law. One of the central principles of the rule of law is that the law must be

“accessible…intelligible, clear and predictable”.

That is one of Lord Bingham’s principles of the rule of law, and it should matter to the House very much with respect to how it legislates. People need to be able to understand what activity is prohibited and therefore discouraged, and what their rights are so that they are able to claim whatever rights they have.

The interesting thing about part 1 of schedule 5 is that paragraph 2 empowers Ministers to make exceptions to the duty to publish retained direct EU legislation by

“giving a direction to the Queen’s printer specifying the instrument or category of instruments that are excepted.”

There appear to be no limitations on that power and no guidance on when such instruction might or might not be appropriate. My first question to my colleagues on the Treasury Bench, and particularly my hon. and learned Friend the Solicitor General, is: what is the Government’s intention in respect of that exception? Why is it there—we need to understand why it has been included in the Bill—and how will it be used in practice? It seems to me that it is desirable that the entirety of retained direct EU legislation should be made available through the Queen’s printer, so what is the intention as to the circumstances in which a Minister might remove himself from the duty and give a different direction? There is, perhaps slightly to my regret, no amendment to address that question—had I focused on it slightly better at an earlier stage and not been diverted by other matters, I might have tried to tease it out by tabling an amendment—but as we are also debating whether the clause and schedule should stand part of the Bill, it is important that we give the matter some consideration. Indeed, it ties in exactly with what the hon. Member for Nottingham East (Mr Leslie) said in introducing new clause 21, which is on exactly the same principle or philosophical issue of providing certainty.

My second question is about part 2 of schedule 5, which provides for Ministers by regulations to enable or require judicial notice to be taken of retained EU law or EU law. There are no limitations whatsoever on this delegated legislative power to enable or require judicial notice to be taken and, as far as I can see, nor are there any provisions to require that a Minister can make such regulations only under certain circumstances—for example, regulatory harmonisation might be a legitimate reason for making such regulations. This is a classic Henry VIII power, as paragraph 4(3) provides total Henry VIII powers, and is only limited, under paragraph 4(4), to primary legislation made or passed before the end of the Session in which this Bill is passed.

All that takes me back to an interesting debate the Committee had on a previous day—which one has rather faded out of my memory—in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I raised our continuing concerns about the judiciary having a lack of clarity about how they were supposed to interpret and apply retained EU law. Lord Neuberger and Lady Hale have expressed concern that the Bill is insufficiently clear about how retained EU law should be interpreted by the courts post exit. Lord Neuberger in particular was concerned by the prospect of the courts having to determine questions of regulatory harmonisation against divergence between UK and EU law—an essentially political topic, with possible economic consequences to the interpretation. As it happens, regulations made under part 2 of schedule 5 might address the judiciary’s anxiety about the need for better guidance on retained EU law, but what troubles me is that this provision again subtly sidelines Parliament from any role in providing guidance, as it is a matter of Executive discretion.

I must say to my hon. and learned Friend the Solicitor General, and to my other colleagues on the Treasury Bench, that I do understand the Government’s difficulties. The whole Bill is about an accretion of power to a Government who do not really know how they are going to have to use that power and are fearful that something will come up that will require them to act swiftly, and who therefore think that they have to maximise the tools at their disposal.

Forgive my repeating this—I think that the Bill has been quite well improved as it has gone through the House and, indeed, some of the assurances that have been given will lead to further improvements, I have no doubt, on Report—but it was this sort of thing that made me describe the Bill as a monstrosity on Second Reading. It is so contrary to the normal way in which one would expect to legislate for Parliament both to grant the powers that a Government need, including, where necessary, powers of secondary legislation, and at the same time to make sure that these cannot run out of control. On the plain face of the Bill, this is really one of the immense Henry VIII powers. The Government have decided to resolve this issue by taking a very big sledgehammer to the normal structures.

--- Later in debate ---

I am, however, sympathetic to the spirit of the new clause. The Government will explain how we correct the law so that it works in our domestic statute book. As Members will know, it is established practice for an explanatory memorandum to accompany every statutory instrument that is made, and that is what will happen in this instance. Last week, a Government amendment was agreed by the House to provide that a Minister must make statements containing certain information before making statutory instruments under clauses 7 to 9. It includes a requirement that statements include additional information explaining what any relevant EU law did before exit day, and what changes we will make in that law and why. I think that that, in large measure, deals with the hon. Gentleman’s concerns and helps to provide clarity.

[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.

--- Later in debate ---

[Mr Dhesi]

I thank the right hon. Gentleman for making that intervention, because if Mars can do it, I am sure we can do it within Parliament. The Government’s approach is, in essence, keeping business in the dark.

In conclusion, a cliff edge scenario, with us sleepwalking into no deal, which is where this Government seem to be heading, would be severely damaging to us and our economy. We need to change course and avoid this fate of no deal. A starting point on that would be clear and detailed impact assessments.

[Mr Leslie]

I thank the House for going into much more detail than we perhaps initially expected on these clauses and amendments. It is has been a worthwhile investigation of schedule 5. The right hon. and learned Member for Beaconsfield (Mr Grieve), in particular, raised pertinent points about rules of evidence, and we have heard good speeches from many of my hon. Friends, too. The Minister says that schedule 5 allows those explanatory memorandums to be produced by Government to help the House to sift through these potentially 12,000-plus statutory instruments that are going to come, so I will take his word on that and we will hold him to account on it. In those circumstances, and as we have many other issues to discuss, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Schedule 5 agreed to.

New Clause 13

Customs duties

“A Minister of the Crown may not make regulations to appoint exit day until Royal Assent is granted to an Act of Parliament making provision for the substitution of section 5 (customs duties) of the European Communities Act 1972 with provisions that shall allow the United Kingdom to remain a member of the EU common customs tariff and common commercial policy.”—(Mr Leslie.)

This new clause would ensure that provisions allowing the UK to remain a member of the Customs Union, as currently set out in section 5 of the European Communities Act 1972 but set to be repealed by section 1 of this Act, will be enacted ahead of exit day.

Brought up, and read the First time.

[Mr Leslie]

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

[The Temporary Chair (Sir David Crausby)]

With this it will be convenient to discuss the following:

Government amendment 399.

Amendment 349, in clause 14, page 10, line 46, leave out “for a term of more than 2 years”.

This amendment would prevent Ministers using delegated powers to create criminal offences which carry custodial sentences.

Government amendment 400.

Clause 14 stand part.

That schedule 6 be the Sixth schedule to the Bill.

New clause 8—Committee of the Regions—

“Her Majesty’s Government shall—

(a) maintain a full consultative role for local authorities throughout the process of withdrawal from the European Union, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them, and

(b) provide for a formal mechanism in domestic law fully to replicate the advisory role conferred on local authorities via membership of the European Union Committee of the Regions.”

This new clause would ensure that the current consultative role that UK local government currently have via the EU Committee of the Regions would be replicated in the UK after exit day.

New clause 10—Transitional arrangements—

“Her Majesty’s Government shall, in pursuit of a new relationship between the United Kingdom and European Union after exit day, seek to negotiate and agree transitional arrangements with the European Union of sufficient duration to allow—

(a) the conclusion and coming into force of new trade agreements replicating as closely as possible all those trade agreements currently applying to the UK by virtue of its membership of the EU before exit day;

(b) an associate membership of the EU Single Market so that the regulatory settlement existing between the UK and EU before exit day can continue for the duration of transitional arrangements, which shall be not less than two years after exit day.”

This new Clause would require the UK Government to seek transitional arrangements that would allow existing trade agreements which currently apply to the UK to be negotiated and continued for the circumstances applying after the UK has exited the EU, and would seek transitional arrangements including an associate membership of the EU Single Market for not less than two years following exit day.

New clause 11—Ongoing regulatory requirements—

“After exit day the Secretary of State shall continue to assess all EU regulations, decisions and tertiary legislation and publish a report to both Houses of Parliament assessing the costs and benefits of each regulation and directive and whether HM Government should consider it expedient to propose a similar reform to UK domestic legislation in order to secure an ongoing regulatory alignment between the UK and the EU going forward.”

After exit day the European Union is likely to continue to produce legislation, regulations and decisions that would have applied to the United Kingdom if we had remained a member of the EU. This new clause would require Ministers to publish an assessment of new and developing EU laws and regulations and whether there would be benefits or costs for the UK in adopting similar legal changes to UK domestic legislation with a view to maintaining regulatory alignment with the EU as far as possible.

New clause 31—Promotion of the safety and welfare of children and young people following withdrawal of the United Kingdom from the European Union—

“(1) The Secretary of State shall make the arrangements specified in this section for the purposes of safeguarding children and promoting their welfare from exit day onwards.

(2) The Secretary of State shall lay before Parliament a strategy for seeking continued co-operation with—

(a) the European Union Agency for Law Enforcement Cooperation (Europol),

(b) Eurojust, and

(c) the European Criminal Records Information System

on matters relating to the safety and welfare of children and young people.

(3) The Secretary of State shall lay before Parliament a strategy for seeking continued participation in the European Arrest Warrant, in relation to the promotion of the safety and welfare of children and young people.”

This new clause would require the Government to lay before Parliament a strategy for maintaining co-operation with certain EU bodies and structures after exit day for the purposes of promoting the safety and welfare of children and young people.

New clause 32—Programmes eligible until exit day for support from the European Social Fund—

“The Secretary of State shall bring forward proposals for a fund to support, on and after exit day, programmes and projects which—

(a) relate to

(i) the promotion of social inclusion amongst children and young people,

(ii) efforts to combat poverty and discrimination amongst children and young people, and

(iii) investment in education, training and vocational training or skills and lifelong learning for children and young people, and

(b) would have been eligible for funding up until exit day by the European Social Fund.”

This new clause seeks to maintain financial support after exit day for projects and programmes which would have been eligible for funding from the European Social Fund.

New clause 33—Mitigating any inflationary risks after exit day—

“(1) The Secretary of State shall lay before Parliament a strategy for mitigating any risks which withdrawal from the EU may present to low income families with children.

(2) The strategy set out in subsection (1) must include a commitment to assess each year whether rates of benefits and tax credits are maintaining value in real terms relative to costs of living as defined by the Consumer Prices Index.”

This new clause would require the Secretary of State to lay before Parliament a strategy for mitigating any potential risks which withdrawal from the EU might present to low income families with children.

New clause 40—European Neighbourhood Policy—

“The Secretary of State shall, by 30 September 2018, lay before Parliament a strategy for seeking to maintain a role for the UK in the EU’s European Neighbourhood Policy after exit day.”

New clause 41—European Development Fund—

“The Secretary of State shall, by 30 September 2018, lay before Parliament a report on the Government’s policy on future payments into the European Development Fund.”

New clause 42—EU Citizens’ Severance Payments—

“The Secretary of State shall, by 30 September 2018, lay before Parliament a report on the Government’s policy on EU citizens’ rights to severance payments at EU agencies based in the UK.”

New clause 43—Diplomatic Staff—

“The Secretary of State shall, by 30 September 2018, lay before Parliament a report on the Government’s policy on future arrangements for the UK to second diplomatic staff members to the European Union External Action Service.”

New clause 44—Duty to make arrangements for an independent evaluation: health and social care—

“(1) No later than 1 year after this Act is passed, the Secretary of State must make arrangements for the independent evaluation of the impact of this Act on the health and social care sector.

(2) The evaluation carried out by an independent person to be appointed by the Secretary of State, after consulting the Scottish Ministers, the Welsh Ministers and the relevant Northern Ireland departments, must analyse and assess—

(a) the effects of this Act on the funding of the health and social care sector;

(b) the effects of this Act on the health and social care workforce;

(c) the impact of this Act on the economy, efficiency and effectiveness of the health and social care sector; and

(d) any other such matters relevant to the impact of this Act upon the health and care sector.

(3) The person undertaking an evaluation under subsection (1) above must, in preparing an evaluation report, consult—

(a) the Scottish Ministers, the Welsh Ministers and the relevant Northern Ireland department;

(b) providers of health and social care services;

(c) individuals requiring health and social care services;

(d) organisations working for and on behalf of individuals requiring health and social care services; and

(e) any persons whom the Secretary of State deems relevant.

(4) The Secretary of State must, as soon as reasonably practicable after receiving a report of the evaluation, lay a copy of the report before Parliament.”

This new clause would require an independent evaluation of the impact of the Act upon the health and social care sector to be made after consulting the Scottish Ministers, the Welsh Ministers and the relevant Northern Ireland department, service providers, those requiring health and social care services, and others.

New clause 46—Consultation assessing impact of no agreement with the EU for workers on withdrawal—

“Within six months of the passing of this Act, the Secretary of State must carry out a public consultation assessing the impact on—

(a) workers in the EU who are UK citizens, and

(b) workers in the UK who are EU citizens

if no agreement is reached with the European Union on the UK’s withdrawal.”

This new clause would require the Secretary of State to carry out a public consultation within six months of the passing of the Act, assessing the impact of not having an EU withdrawal deal on workers in the EU who are UK citizens, and on workers in the UK who are EU citizens.

New clause 47—Assessing the impact of leaving the EU on social and medical care provision for disabled people—

“Within six months of the passing of this Act, the Secretary of State must publish an assessment of the impact of leaving the EU on social and medical care provision for disabled people living in the UK.”

This new clause would require the Secretary of State to publish within six months of the passing of this Act an assessment of the impact of leaving the EU on social and medical care provision for disabled people living in the UK.

New clause 48—Mutual Recognition Agreements—

“(1) In the course of negotiating a withdrawal agreement, Her Majesty’s Government shall seek to maintain after exit day the full range of mutual recognition agreements with which the United Kingdom has obtained rights of product conformity assessments and standards by virtue of its membership of the European Union.

(2) In respect of mutual recognition agreements relating to the safeguarding of public health, within one month of this Act being passed, the Secretary of State must publish a strategy for ensuring that existing UK notified bodies, in accordance with provisions laid out in the EU Medical Devices Regulation, may continue to conduct conformity assessment certification for both UK and EU medical devices to ensure continuity within and beyond the European Union.”

This new clause would require the UK Government to seek to maintain existing mutual recognition agreements and to publish a plan for UK notified bodies (such as the British Standards Institute) to continue to perform conformity assessments for medical devices and pubic health-related products deriving both within the UK and from across the EU.

New clause 52—Duty to secure safe harbour—

“(1) It shall be the duty of the Prime Minister to seek to secure the United Kingdom’s continued membership of the Single Market and of the Customs Union until such time as the Prime Minister is satisfied that the conditions in subsections (2) and (3) are met.

(2) The condition in this subsection is that the United Kingdom and the European Union have reached an agreement on the future trading relationship between the United Kingdom and the European Union.

(3) The condition in this subsection is that the United Kingdom has developed a satisfactory framework for immigration controls in respect of nationals of European Union Member States not resident in the United Kingdom on the date on which the United Kingdom ceases to belong to the European Union.”

New clause 54—Implementation and transition—

“(1) Her Majesty’s Government shall seek to secure a transition period prior to the implementation of the withdrawal agreement of not less than two years in duration, during which—

(a) access between EU and UK markets should continue on the terms existing prior to exit day,

(b) the structures of EU rules and regulations existing prior to exit day shall be maintained,

(c) the UK and EU shall continue to take part in the level of security cooperation existing prior to exit day,

(d) new processes and systems to underpin the future partnership between the EU and UK can be satisfactorily implemented, including a new immigration system and new regulatory arrangements,

(e) financial commitments made by the United Kingdom during the course of UK membership of the EU shall be honoured.

(2) 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.”

This new clause would ensure that the objectives set out by the Prime Minister in her Florence speech are given the force of law and, if no implementation and transition period is achieved in negotiations, then exit day may not be triggered by a Minister of the Crown. The appointment of an ‘exit day’ would therefore require a fresh Act of Parliament in such circumstances.

New clause 56—Saving of acquired rights: Gibraltar—

“(1) Nothing in this Act is to be construed as removing, replacing, altering or prejudicing the exercise of an acquired right.

(2) Any power, howsoever expressed, contained in this Act may not be exercised if the exercise of that power is likely to or will remove, replace or alter or prejudice the exercise of an acquired right.

(3) In subsection (2) a reference to a power includes a power to make regulations.

(4) In this section an acquired right means a right that existed immediately before exit day—

(a) whereby a person from or established in Gibraltar could exercise that right (either absolutely or subject to any qualification) in the United Kingdom; and

(b) the right arose in the context of the United Kingdom’s membership of the European Union and Gibraltar’s status as a European territory for whose external relations the United Kingdom is responsible within the meaning of Article 355(3) TFEU and to which the provisions of the EU Treaties apply, subject to the exceptions specified in the 1972 Act of Accession.

(5) Nothing in this section prevents the use of the powers conferred by this Act to the extent that acquired rights are not altered or otherwise affected to the detriment of persons enjoying such rights.”

The purpose of this new clause is to ensure that the Bill does not remove or prejudice rights (for instance in the financial services field) which, as a result of the UK’s (and Gibraltar’s) common membership of the EU, could be exercised in the UK by a person from or established in Gibraltar, where that right existed immediately before exit day.

New clause 59—Mutual recognition of professional qualifications—

“(1) In the course of negotiating a withdrawal agreement, Her Majesty’s Government shall seek to maintain after exit day the mutual recognition of professional qualifications which the United Kingdom has obtained under Directives 2005/36/EC and 2013/55/EU by virtue of its membership of the European Union.

(2) HM Government shall ensure that competent authorities for the purpose of the European Union (Recognition of Professional Qualifications) Regulations 2015 may continue to recognise professional qualifications obtained in the European Union as equivalent to qualifications obtained in the UK after exit day to ensure continuity.”

This new clause would (a) commit the Government to seeking to replicate in the withdrawal agreement the framework for mutual recognition of professional qualifications the UK has at present and (b) allow competent UK authorities to continue to recognise EU qualifications as equivalent to their UK counterparts.

New clause 61—Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)—

“(1) The Secretary of State must take all reasonable steps to ensure that the United Kingdom participates in the standards and procedures established by the Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) (Regulation (EC) No 1907/2006) after exit day.

(2) Subject to the provisions of the withdrawal agreement, steps under subsection (1) may include regulations under section 17, or another provision of this Act, providing for full or partial participation of the United Kingdom in REACH.”

This new clause would ensure that after withdrawal from the EU, the UK continued to participate in the Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals.

New clause 71—Mutual market access for financial and professional services—

“(1) Before exit day, a Minister of the Crown must lay before Parliament a report assessing the progress made by Her Majesty’s Government in negotiating continued mutual access to markets in the EU and the United Kingdom for businesses providing financial or professional services.

(2) ‘Mutual access to markets’ means the ability for a business established in any member State to provide services in or into the United Kingdom and vice versa.”

This new clause would require a Minister to report before exit day on the Government’s progress in negotiating mutual market access for financial and professional services

New clause 72—Importation of food and feed: port health etc.—

“(1) Before exit day, a Minister of the Crown must lay before Parliament a report assessing the progress made by Her Majesty’s Government in negotiating—

(a) continued mutual recognition of standards, inspections, certifications and other official controls, and

(b) a continued basis for co-operation among public authorities, as between the United Kingdom and the EU in relation to food or animal feed—

(i) produced in, or imported from a third country into, the United Kingdom or a member State, and

(ii) subsequently exported from the United Kingdom to a member State, or vice versa.

(2) Any power of the Secretary of State or a Minister of the Crown (including a power under retained EU law) to make regulations requiring or authorising the charging of a fee or other charge in respect of the inspection of food or animal feed on its importation into the United Kingdom must, so far as reasonably practicable, be exercised so as to allow public authorities conducting such inspections fully to recover any costs incurred in the carrying out of such inspections.”

This new clause would require a Minister to report before exit day on the Government’s progress in negotiating mutual recognition of controls on food and feed imports. It would also require the Government to permit, so far as possible, full cost recovery for authorities carrying out border inspections of food or feed.

New clause 83—Strategy for UK wind energy sector—

“(1) Within six months of any vote in the House of Commons on the terms of withdrawal from the EU, the Secretary of State shall lay before Parliament a strategy for supporting the UK wind energy sector in its ability to export competitively to markets in the EU.

(2) The strategy set out in subsection (1) must assess the impact that—

(a) tariffs,

(b) quotas,

(c) customs checks, and

(d) other non-tariff barriers

arising from any withdrawal agreement with the EU will have on the UK wind energy sector’s ability to export competitively to EU markets over the next twenty years.”

This new clause would require the Secretary of State to lay before Parliament a strategy for supporting the UK wind energy sector in its ability to export competitively to markets in the EU following exit day, and to do this within six months of any vote in the House of Commons on the terms of withdrawal.

New clause 84—UK higher education sector: participation in EU programmes—

“(1) Within six months of any vote in the House of Commons on the terms of withdrawal from the EU, the Secretary of State shall lay before Parliament a strategy setting out its intentions regarding the nature of the UK higher education sector’s future participation in—

(a) the 2014-2020 Horizon 2020 programme,

(b) the Erasmus+ Exchange programme, and

(c) future EU research, collaboration and student exchange programmes.

(2) The strategy set out in subsection (1) must set out its intentions regarding the extent to which the UK higher education sector will be able to access existing and future EU programmes after exit day both—

(a) during any transitional period, and

(b) following any transitional period.

(3) The strategy set out in subsection (1) must also estimate the future impact that any withdrawal agreement will have on the UK higher education sector in terms of—

(a) the financing of future research,

(b) the quality of future research, measured according to the Research Excellence Framework, and

(c) the ability to participate in future EU-wide collaborative research programmes in the twenty years starting from the day on which this Act receives Royal Assent.

(4) The strategy set out in subsection (1) must also set out the extent to which UK Government funds will address any shortfalls identified from calculations and estimates made as a result of subsections (2) and (3).”

This new clause would require the Secretary of State, within six months of any vote in the House of Commons on the terms of withdrawal, to lay before Parliament a strategy setting out its intentions for the UK higher education sector’s future participation in current and future EU research, collaboration and student exchange programmes following exit day. This strategy would have to set out the long-term impact that the withdrawal agreement will have on the UK’s future participation, and set out the extent to which UK Government funds would mitigate this impact.

New clause 85—Strategy for economic and social cohesion principles derived from Article 174 of TFEU—

“(1) The Secretary of State shall, before 31 December 2018, lay before Parliament a strategy for developing principles for economic and social cohesion derived from Article 174 of the Treaty on the Functioning of the European Union.

(2) The strategy laid under subsection (1) shall state the principles derived from Article 174 of TFEU.

(3) The principles under subsection (2) shall form part of UK domestic law on and after the day of the UK’s withdrawal from the EU.

(4) The aims of the strategy under subsection (1) shall be—

(a) to reduce inequalities between communities, and

(b) to reduce disparities between the levels of development of regions of the UK, with particular regard to—

(i) regions with increased levels of deprivation,

(ii) rural and island areas,

(iii) areas affected by industrial transition, and

(iv) regions which suffer from severe and permanent natural or demographic handicaps.

(5) A Minister of the Crown may by regulations make provision for programmes to implement the strategy.

(6) Programmes under subsection (5) shall run for a minimum of ten years and shall be independently monitored.”

This new clause would enshrine in domestic law the principles underlying Article 174 (Title XVIII) of the Treaty on the Functioning of the European Union.

Government amendment 401.

Clause 15 stand part.

Amendment 362, in schedule 8, page 49, line 4, after “document” insert “(not including a contract)”.

The amendment would make clear that the Bill does not modify the interpretation of contracts relating to EU law.

Amendment 102, page 50, line 2, leave out paragraph 3

This amendment would remove the additional power provided in paragraph 3.

Amendment 103, page 50, line 41, leave out paragraph 5

This amendment would remove the future powers to make subordinate legislation in paragraph 5.

Government amendment 402.

Amendment 380, page 55, line 16, leave out sub-paragraph (1) and insert—

“(1) For the purposes of the Human Rights Act 1998, any retained EU legislation is to be treated as subordinate legislation and not primary legislation.”

This amendment would amend the status of EU-derived domestic legislation to subordinate legislation for the purposes of the Human Rights Act 1998.

Amendment 11, page 55, line 17, leave out “primary legislation and not”.

This amendment would remove the proposal to allow secondary legislation to be treated as primary for the purposes of the Human Rights Act 1998.

Government amendments 403 to 405

Amendment 291, page 58, line 31, leave out paragraph 28 and insert—

“(1) The prohibition on making regulations under section 7, 8, or Schedule 2 after a particular time does not affect the continuation in force of regulations made at or before that time, except where subparagraphs (2) and (3) apply.

(2) Regulations may not be made under powers conferred by regulations made under section 7, 8, or Schedule 2 after the end of the period of two years beginning with exit day.

(3) Regulations made under powers conferred by regulations made under section 7, 8, or Schedule 2 may not be made during the two year period in subparagraph (2) unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

This amendment would require all tertiary legislation made under powers conferred by regulations to be subject to Parliamentary control.

That schedule 8 be the Eighth schedule to the Bill.

That schedule 9 be the Ninth schedule to the Bill.

Clause 18 stand part.

Amendment 120, in clause 19, page 14, line 40, leave out subsection (2) and insert—

“(2) The remaining provisions of this Act come into force once following a referendum on whether the United Kingdom should approve the United Kingdom and Gibraltar exit package proposed by HM Government at conclusion of the negotiations triggered by Article 50(2) for withdrawal from the European Union or remain a member of the European Union.

(2A) The Secretary of State must, by regulations, appoint the day on which the referendum is to be held.

(2B) The question that is to appear on the ballot papers is—“Do you support the Government’s proposed new agreement between the United Kingdom and Gibraltar and the European Union or Should the United Kingdom remain a member of the European Union?”

(2C) The Secretary of State may make regulations by statutory instrument on the conduct of the referendum.”

This amendment is intended to ensure that before March 2019 (or the end of any extension to the two-year negotiation period) a referendum on the terms of the deal has to be held and provides the text of the referendum question.

Amendment 82,  page 14, line 40, at beginning insert “Subject to subsection (2A)”.

This amendment is a consequential amendment resulting from Amendments 78, 79 and 80 to Clause 1 requiring the Prime Minister to reach an agreement on EEA and Customs Union membership, gain the consent of the devolved legislatures and report on the effect leaving the EU will have on the block grant before implementing section 1 of this Act.

Amendment 85, page 14, line 42, at end insert—

“(2A) But regulations bringing into force section 1 may not be made until the Secretary of State lays a report before—

(a) Parliament, and

(b) the National Assembly for Wales

outlining the effect of the United Kingdom’s withdrawal from the EU on the National Assembly for Wales’s block grant.”

This amendment would require the UK Government to lay a report before the National Assembly for Wales outlining the effect of the UK’s withdrawal from the EU on Welsh finances, before exercising the power under section 1. This would allow for scrutiny of the Leave Campaign’s promise to maintain current levels of EU funding for Wales.

Amendment 86, page 14, line 42, at end insert—

“(2A) But regulations bringing into force section 1 may not be made until the Secretary of State lays a report before—

(a) Parliament, and

(b) the National Assembly for Wales

outlining the effect of the United Kingdom’s withdrawal from the Single Market and Customs Union on the Welsh economy.”

This amendment would require the UK Government to lay a report before Parliament and the National Assembly for Wales outlining the effect of the UK’s withdrawal from the EU Single Market and Customs Union before exercising the powers in section 1.

Amendment 219, page 14, line 42, at end insert—

“(2A) A Minister of the Crown may not appoint a day for any provision of this Act to come into force until the Secretary of State has published a report on which Scottish products will be identified with geographical indications in any future trade deal that Her Majesty’s Government seeks to negotiate after the United Kingdom’s withdrawal from the European Union, and has laid a copy of the report before Parliament.”

This amendment would require publication of a Government report on which Scottish products will be identified with geographical indications in any future trade deal that Her Majesty’s Government negotiates after the United Kingdom’s withdrawal from the European Union.

Amendment 220, page 14, line 42, at end insert—

“(2A) A Minister of the Crown may not appoint a day for any provision of this Act to come into force until a Minister of the Crown has published an assessment of the effect of the United Kingdom’s withdrawal from the EU on Scottish businesses and laid a copy of the assessment before Parliament.”

This amendment would require publication of a Government assessment of the impact of the United Kingdom’s withdrawal from the EU on Scottish businesses.

Amendment 221, page 14, line 42, at end insert—

“(2A) A Minister of the Crown may not appoint a day for any provision of this Act to come into force until a Minister of the Crown has published an assessment of the effect of the United Kingdom’s withdrawal from the EU on food and drink safety and quality standards, and has laid a copy of the assessment before Parliament.”

This amendment would require publication of a Government assessment of the impact of the United Kingdom’s withdrawal from the EU on food and drink safety and quality standards.

Clause 19 stand part.

[Mr Leslie]

We find ourselves in the last part of day eight of the European Union (Withdrawal) Bill Committee. Frankly, it has come around far too soon. Members might want another day before Christmas—I do not know whether that can be arranged at the last minute by the Leader of the House.

This group of new clauses and amendments relates to a set of incredibly important issues. I am particularly keen to speak to new clause 13, which relates to the customs union, but there are many other new clauses and amendments in the group that are worth dwelling on. Before I come to new clause 13, I shall point out a few of them.

--- Later in debate ---

[Mr Kenneth Clarke]

Does the hon. Gentleman agree that when he and I tabled new clause 54, we did so consciously trying to replicate Government policy as stated in the Florence speech? If the Minister would fairly promptly acknowledge and accept that, we should be able to save some time for the other important matters to be discussed in relation to this group.

[Mr Leslie]

That is an excellent suggestion. We could almost add new clause 54 to the copy-and-paste process, given that it is based on the Prime Minister’s own words. Obviously, I personally would like to go further, but the right hon. and learned Gentleman and I tabled the new clause in the spirit of compromise.

New clause 48 serves to highlight the important but often overlooked question of mutual recognition agreements. MRAs are another series of international obligations between countries. The UK has obtained rights for notified bodies to undertake conformity assessments to make sure that standards across the EU are complied with and that UK firms can certify assessments of conformity across that market of 500 million people by virtue of the process that they undertake in the UK. If we lose that MRA process, it could cause immense disruption to many businesses and sectors in the UK.

[Melanie Onn (Great Grimsby) (Lab)]

I know that Ministers are already aware of REACH—the registration, evaluation, authorisation and restriction of chemicals—but the regulatory compliance of companies such as BASF in my constituency is essential to the continuation of effective trading across borders. I really do not want to see companies moving elsewhere, perhaps where regulations are easier to follow, because we will lose good jobs in research, development and manufacturing, and all in the incredibly important science, technology, engineering and maths sector. Does my hon. Friend agree that our leaving REACH will put that at risk?

[Mr Leslie]

I entirely agree and my hon. Friend is completely correct to stand up for her constituents and local businesses and to make that point, which is too often overlooked. We need mutual recognition arrangements like the REACH regulations. It is often said that big corporations want to get out of such regulations, but in this case they want to stay part of that framework because it allows them to access markets. If we sacrifice that access, they will lose out and jobs will go as a result.

On a related issue, new clause 59 concerns the recognition of professional qualifications throughout the EU. I have been talking to the Royal Institute of British Architects, which is very worried about British graduates in architecture and those already in practice who often have services to sell across that wide range of 28 countries—as it is currently—and it is deeply concerned about whether its professional qualifications will continue to be recognised for the purposes of its ongoing business in that wider market. This is really serious stuff, and I hope that the Minister will address the matter when he has time to respond to these amendments.

New clause 11 is about how Parliament should be able to keep track, even after exit day, of regulations that are being made in the European Union. When we leave, we will obviously have our own jurisdiction and the EU will have its own jurisdiction, but if the EU continues to evolve its regulatory practices and to make new changes to rules and laws, we need some device to keep us informed in the UK Parliament so that we have the choice over whether to contract with those rules and stay in alignment or to ensure that we have regulatory equivalence. This is really more of a procedural new clause, but it is just asking the question of how we will keep in touch given that these are our near neighbours and the markets with which we have to remain aligned.

[Ian Murray (Edinburgh South) (Lab)]

My hon. Friend is proposing a whole series of amendments that would certainly improve the current dire situation of this Bill, but is not a simple solution to all these amendments to stay in the single market and the customs union?

[Mr Leslie]

That is indeed the simple solution. I was building towards that crescendo, but there is always somebody who steals my punchline. That is effectively the conclusion that I have reached. Before I do reach it, there is another important measure, new clause 8, that English local authorities have been keen to see in the Bill. Currently, they have consultative rights on those areas of policy that are currently decided within the European Union framework by virtue of their membership of something called the Committee of the Regions. I know that some Government Members may baulk at that as some sort of bureaucratic committee that has no purpose, but many local authorities value the voice that they have through that committee into the policymaking process at European level. The question they are asking is: will they still have those same consultative rights when those areas of policy are brought back into a UK context? It is a fair question and I hope that the Local Government Association’s points will be addressed.

The main issue that I want to discuss is new clause 13, which relates to the customs union. It would ensure that we do not get past exit day without new legislation that allows the UK the option to remain a member of the customs union—in other words, the EU common customs tariff and common commercial policy. We must be absolutely crystal clear about this: ditching the most efficient tariff-free, frictionless free trade area in the world is what we are on the brink of doing for something that will inevitably—inevitably—be inferior. The referendum ballot paper did not include that question and put it in front of our electors. What we have seen is the Prime Minister’s interpretation of the result of that referendum, but that does not have to be Parliament’s interpretation.

If we find ourselves messing up the way that the UK border operates, the Irish land border, our ports and our airports, then vast swathes of our businesses and our economy face very, very significant disruption. Indeed, customs is, potentially, the overnight cliff-edge issue that will hit the headlines if we get this wrong, particularly if we have no deal—that hard Brexit.

Let us consider the issues at stake: last year, goods worth £382 billion were traded between the UK and the European Union. That is virtually the same amount as the UK traded with the rest of the world, so we are talking about trade of half of our goods. In fact, the system currently works so well across the 28 countries— 500 million people—that professionals talk not about exports and imports, because the movement of goods and services is so seamless and frictionless, but about arrivals and dispatches. It is as simple as that. That is how businesses regard the inventory available to many of them through the warehouses across the European Union. For car manufacturers in the UK, selling a car to a customer in Birmingham is just as simple as selling one in Berlin or Brussels. Fewer than 1% of the lorries that go through Dover or the channel tunnel—the main conduits for goods and traffic—require checks, so it is a smooth and seamless process at present.

[Tom Brake]

It is indeed. I do not know whether the hon. Gentleman has visited Dover port. If he has, he will know that the site has no room available for customs checks. If he has visited the channel tunnel, he will also know that there is no capacity whatever to do any customs checks there.

[Mr Leslie]

Yes, and we all presumed that some of the £3.7 billion of preparations money would be spent on tarmacking fields around those areas in preparation for lorry parks and the overflow from the possible queues on the motorways.

[Mary Creagh (Wakefield) (Lab)]

Does my hon. Friend agree that the Government are failing to understand the deep complexity of supply chains in the EU? He is talking about the finished product of a car, but there are also many automotive components that go backwards and forwards between the UK and mainland Europe. Sometimes within a single company, one part is made on mainland Europe, fixed into a car in this country and then exported back out to Europe. I also believe that the planning application for the lorry park was rejected because the council failed to carry out an environmental impact assessment.

[Mr Leslie]

We will have to see what happens there. I think that about 2.5 million lorries a year go through the port of Dover; just think about the volume of traffic we are talking about.

[Wera Hobhouse]

The Brexit Select Committee actually visited Dover and we then met a representative of the port of Calais. Although this country is prepared to build a lorry park, the French side will not build a lorry park because it has a migrant crisis. The port of Calais will just close under these circumstances, so where will we export to and import from?

[Mr Leslie]

I know that the Minister will answer all these questions as soon as he sums up this debate. He has the answers in his pack and he is not one to shilly-shally; he will give us specific and detailed responses to these questions.

[Angela Smith]

May I turn my hon. Friend’s attention to Ireland? Freight traffic to Dublin has enjoyed a growth rate of 700% since the establishment of the single market, but the control zone of the terminal is no bigger than it was in the 1980s, thanks to the fact that it has enjoyed the dismantling of customs control and port health control. Is he aware of any preparations or investment to deal with this potential problem if we do abolish the customs union?

[Mr Leslie]

No, and preparations would be needed for all sorts of other checks, including sanitary and phytosanitary checks. This would be for every port around this country, and I think that more than 1 million containers come in through the port of Southampton alone.

[Anna Soubry]

Does the hon. Gentleman agree with my view that most people in this country do not understand the huge benefits of the customs union? Of course, a huge swathe of people have never had any experience of stuff being stopped in customs. I certainly remember those days because of my age. Has it been his experience that British businesses are in many ways even more concerned about the movement of goods and tariffs and not being in the customs union than the actual imposition of the tariffs themselves? Companies such as Rolls-Royce in neighbouring Derby hugely benefit from these large supply chains and they are really worried about our leaving the customs union.

[Mr Leslie]

The right hon. Lady and my hon. Friend the Member for Wakefield (Mary Creagh) are right to focus on supply chains. The tariff could be a problem. Who knows what that would be—3%, 4% or 5%—if we fell back on the World Trade Organisation? Think of the disruption to business planning. A lot of firms would almost need to have an insurance policy at their disposal for the warehousing just to cope with the flows. We could be on the brink of many manufacturers fundamentally having to move away from the just-in-time business models that they have developed; it is almost like “RIP JIT” in this circumstance. We could almost see a whole new business model—we could be stepping back into the 20th century and earlier—if we get this wrong.

[Kate Green (Stretford and Urmston) (Lab)]

I am grateful to my hon. Friend, and indeed to the right hon. Member for Broxtowe (Anna Soubry), for drawing attention to this wider point, which greatly troubles manufacturers in my constituency, in particular. As things stand, they manufacture and ship immediately to customers in other parts of the European Union. We have a huge shortage of available space for new warehousing facilities in Greater Manchester, and it is really important that the Government understand that wider context—it is not just a question of problems at the ports.

[Mr Leslie]

We must not take these arrangements for granted. Many of our constituents have taken them for granted for decades now and thought, “Oh, well, this is all seamless,” so they would not understand, as the right hon. Member for Broxtowe (Anna Soubry) said.

It is worth just walking through what happens when we do not have this sort of seamless arrangement. If a country is outside the customs union, this is what happens to goods that are destined for elsewhere. Before departure, people have to complete an export declaration, which is often lodged with a freight forwarding company. At the port of exit, the goods need to be cleared by the authorities, who decide whether inspection is needed. If so, the goods are possibly placed into storage and checked. Then, once they have left and travelled to the port of entry in the destination country, they are presented to the authorities via another declaration process, and potentially placed in storage again. Then there are country-of-entry checks and risk assessments; there is revenue collection; there could be checks for smuggled, unlicensed goods; and there are things such as hygiene, health and safety measures, labelling, consumer protection checks, the administration of quota restrictions, agricultural refunds, and trade defence checks to ensure that things are not being dumped unfairly in the country. All these administrative processes will absolutely add to the export process for goods.

[Melanie Onn]

Great Grimsby is well known for its fish and fish processing. We have discussed extensively some of the issues around delays to things such as automotive sector products, but we also have fresh products, such as fish. Fish is caught in Norway and imported to Grimsby, and it is an essential part of the fish processing industry. Any additional delays to that product will mean that supermarkets will not buy it—they will not want it—and the quality will reduce. That will have a really serious impact. My hon. Friend is absolutely right to draw attention to the issues around the delays and to make sure that the Government understand that reducing those delays in any way possible has to be at the forefront of their considerations.

[Mr Leslie]

The delays will probably be of great concern to the companies involved in those shipments, because those goods have to be fresh and delivered on time. However, if we fall back on to WTO arrangements, there is also the potential 8% tariff for fish and crustaceans.

[Mr Rees-Mogg]

I wonder why the hon. Gentleman is concerned for companies on that particular point, when Norway is not in the European Union or the customs union—it is in the single market. Therefore, the customs union aspect simply does not apply to Norway.

[Mr Leslie]

The hon. Gentleman will know that there are concerns. He said Norway was a “vassal state”—I think that was his phrase. I do not think the Norwegians would see it that way, but they have had to simply take instructions, in many ways, in terms of the European Union arrangements on a lot of these questions. With many of our products, particularly in the manufacturing sector, the customs union has given us great opportunity to thrive, and we have done particularly well in recent years on the back of that.

[Wera Hobhouse]

On that point, the Norwegian border is very interesting. Norway is in Schengen, so it does border checks on goods, but it does not need to do border checks on people. The main problem, of course, is that we are not in either. We need, at some point, to address the issue of how we check that lorries are not bringing into this country people we do not want to be here. I know that taking back control of our borders is a very important point, but there will be important discussions to be had about how we make that possible. Container ports will be okay, because we can seal the loads, but it will be a lot more difficult with lorries, because they take separate loads from separate consignments, and they need to be opened several times. So the issue of people smuggling is becoming quite potent.

[Mr Leslie]

The hon. Lady deals with the point incredibly well.

If we end frictionless trade or introduce barriers, with potentially the return of a hard border between the Republic of Ireland and Northern Ireland, very significant problems will arise. The Government are either deluding themselves by saying, “There’s some miraculous blue-skies technological solution to all these things”, or deluding others because of the fudging and obfuscation that is going on, when, in moving from the phase 1 to the phase 2 process, they put in a form of words that seems to be interpreted in almost as many different ways as there are people reading them. They have kicked the issue into the long grass for now, but we are not going to be able to get to a decent deal without this unravelling.

[Ian Paisley]

The long list of checks that the hon. Gentleman read out that would be applicable are, as he knows, currently applied. That is done in a very mechanical way, often by computer through a trusted trader-type scheme. A lot of the mechanisms, procedures and protocols that he read out, especially for food and medical products, are already applied. What would lead to new and additional checks is a change in tariffs between our exports and imported goods. Therefore, surely the imperative for everyone in this House is to urgently get on to the part of the negotiations where we can get a tariff-free deal with the EU. Otherwise some of the issues that he highlighted will need to be covered.

[Mr Leslie]

I agree that we want to have a tariff-free relationship with our European neighbours—that much we can all agree on. However, the hon. Gentleman should look at the circumstances where we export to third countries outside the European Union that are not part of the free trade agreements that we have accrued over the 40 years of our membership of the European Union. Those free trade agreements are there for a reason. As we heard earlier, the reason people want out of the pure WTO arrangement and into an FTA is precisely that they want to minimise many of the transactional barriers and the inertia that can be there.

Let us take the car industry as an example. The chief executive of the Society of Motor Manufacturers and Traders, the car industry’s own representative, is now voicing concerns about investment in the sector gradually beginning to ebb away, partly because of the uncertainty of this whole situation. The level of investment in the industry in the UK was £2.5 billion in 2015, then £1.6 billion in 2016, and it is heading to less than £1 billion this year. Car companies are “sitting on their hands”, according to the chief executive of the SMMT.

[Stephen Timms (East Ham) (Lab)]

I want to take my hon. Friend back to what he was saying about the border between Northern Ireland and the Republic of Ireland. We had evidence this morning at the Brexit Committee on this. As he knows, in their recent agreement with Brussels, the Government committed to having no infrastructure at the border, and, if necessary, to our providing full regulatory alignment with the internal market and the customs union in order to achieve that. Is he encouraged by that commitment, even though the Government’s current policy is not to stay in the customs union, because if it stands, it looks very likely that we will have to, in effect, stay in the customs union?

[Mr Leslie]

Absolutely. If we can maintain full alignment, which was the phrase used in that agreement, that is essentially the same thing as a customs union arrangement. However, there was a caveat in that Ministers said that it would apply unless specific solutions can be found for divergence that they might want to see. That is a bit like the European negotiator’s way of saying, “Come on then, do your best—let’s have a look at what you can dream up.” The worry that I had when the Prime Minister returned was that her interpretation of full alignment was to reference the old list within the Good Friday agreement that merely talked about areas such as agriculture, energy and tourism but excluded trade in goods, which is a pretty big part of the issue at the border. I do not think the European Union signed up to this thinking that there was an exclusion for trade in goods. It is a question of “watch and wait” until the situation unravels.

[Tom Brake]

May I bring the hon. Gentleman back to another border that he referred to, namely that between Norway and Sweden? Our Secretary of State for Transport is on record as saying that that is a completely frictionless border, across which things move with ease. Is the hon. Gentleman aware that that is not the case? I think it was the Swedish trade body that said Norway is the hardest country to trade with.

[Mr Leslie]

I have not seen that information, but there are all sorts of bits of infrastructure involved. There are separate roads and lanes for the processing of different things. As I have said, I am sure that the Minister will have solutions for all those problems.

[Mr Baron]

Before the hon. Gentleman whips himself up into too much of a state of pessimism, may I gently remind him that inward investment is at a record high? If anything, it has picked up recently. In addition, because the EU has no free trade deals with big trading partners such as the US, China, Australia and New Zealand, and neither do we. That has not prevented trade from being conducted handsomely; if anything, our surpluses are with those countries rather than with the EU.

[Mr Leslie]

I will come to the US situation in a moment. I have to tell the hon. Gentleman that the inward investment figures are massively inflated because of mergers and acquisitions data. When we consider the buy-outs of some of the large technology companies—[Interruption.] Well, I do not believe that the hon. Gentleman should necessarily interpret the stripping out of British ownership of such companies as a great British success. If he digs beneath the statistics, he might see a slightly different picture.

Our mythology about the UK’s potential to strike a great and bountiful set of trade deals if we could only rid ourselves of the shackles of the customs union is becoming a bit of a joke across the British economy.

[Angela Smith]

Will my hon. Friend give way?

[Mr Leslie]

I will give way in a moment. Our justification for leaving the customs union has to be more than simply to keep the Secretary of State for International Trade and President of the Board of Trade in a job. My hon. Friend the Member for Penistone and Stocksbridge (Angela Smith), who is keen to intervene, took evidence on some of these questions this morning.

I think that the potential United States deal that the hon. Member for Basildon and Billericay (Mr Baron) referred to is being kiboshed as we speak. The US would want an agricultural basis for any trade deal with the UK, but there is a reason why the Americans dip their chicken in chlorine: they have entirely different and lower animal welfare standards than do the UK and the EU. If we were to do an agricultural deal with the US on the basis of those lower standards, it would undercut our farmers, abattoirs and food producers, who would have to chase each other down to the level of the lowest common denominator. It is contradictory to hear the Environment Secretary saying that he does not wish in any way to reduce safety standards or animal welfare standards, and he may well be killing off the idea of a US trade deal with his pronouncements.

[Angela Smith]

My hon. Friend is being generous in giving way again. This morning, the Secretary of State further entrenched his position, which will make it very difficult to complete a US trade deal involving food and food products. The other evidence that we have received in the Select Committee has indicated, week after week, that many parts of the agricultural sector believe that the UK Government over many generations—not just this Government, but previous ones—have never done the political or diplomatic brokering work necessary to build our export trading position with third countries outside the European Union. What on earth makes us think that we can now pull off this magic trick of building trade around the world to replace that which we have had with the European Union?

--- Later in debate ---

[Mr Leslie]

It is possible that our civil service will eventually gear up to do these things, and I would be the first person to say that we of course want to do new trade deals to repair some of the damage caused by this whole process, but it is not going to happen overnight. In fact, as you will remember, Sir David, Vote Leave promised during the campaign ahead of the referendum that we would be negotiating trade deals the day after the referendum and that they would all get going straightaway, but we are yet to see any of that actually kick off.

[Ian Paisley]

The hon. Gentleman has highlighted this contradiction, so will he explain why the hon. Member for Brent North (Barry Gardiner) has not signed new clause 13—after all, he is on the record as saying that staying in the customs union would be a “disaster”—and why, given that Labour Members were whipped to vote against staying in the customs union, they have now made a volte-face and decided that staying in it is a possibility? What actually is the decided and determined policy of the Labour party on this issue?

[Mr Leslie]

I am sure my hon. Friend the Member for Brent North (Barry Gardiner) can speak for himself; he has done in the past and will do so again. I take the view that we should not shilly-shally on this issue, but stand up and say that there are risks to business and to our borders from our ports and airports being clogged up. We should also say that there is an economic cost—revenue costs for the Treasury—that could mean years of Brexit austerity ahead. All hon. Members, whichever side of the House we are on, need to recognise that some of the responsibility for these things will fall on our shoulders if we do not stand up now and say that staying in the customs union is the right way to proceed.

[Huw Merriman]

rose—

[Anna Soubry]

rose—

[Mr Leslie]

I may give way, because we have been talking about the USA, and some people have speculated about a trade deal with India.

[Anna Soubry]

Yes, on that point.

[Mr Leslie]

I give way to the right hon. Lady.

[Anna Soubry]

Given the hon. Gentleman’s experience, has he, like me, talked to people about the detail of the EU-Canada comprehensive economic and trade agreement, as well as about what the Australians and the Indians—and many other countries that are apparently queuing up to do these great trade deals with us—want? At the core of any free trade agreement with such countries will be an absolute requirement for their people to be able to come to our country quite freely, as they can with the accelerated migration policy under CETA. Under that free trade deal, the Canadian people have the ability to come into parts of the European Union. It is a myth to think that this is about trade, because a huge part of it is about immigration.

[Mr Leslie]

Absolutely. The right hon. Lady has taken the words out of my mouth. I would love to see the Government’s draft free trade agreement with India. I hope that there are fantastic manufactured goods or widgets that the British want to sell and could sell to India, but I suspect that the Indian economy is quite adept at producing widgets of its own and probably at quite a low cost. If the Indians are going to buy anything from us, they will buy services—services are about people; they are people-to-people businesses—and the Indians will naturally say, “Well, we’ll do you a deal, but it has to involve the movement of people.” All hon. Members will need to think about the downstream consequences of that and about how our constituents might respond. Such an agreement would be perfectly reasonable, but this is a much bigger question.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

I pay tribute to my hon. Friend for his work in drafting and moving all these new clauses. Does he remember that when the Prime Minister visited India, the No. 1 topic on the Indians’ agenda was relaxing our immigration rules? How does that square with the Prime Minister’s immigration targets and her ambitions on Brexit?

[Mr Leslie]

We are due imminently to see the immigration Bill—the Minister will tell us exactly when it will be introduced to Parliament—and the draft agreement that the Secretary of State for International Trade has drawn up with the Indian Government, and we will be able to make a judgment on that at that point.

[Ian Murray]

Before my hon. Friend moves away from India, may I draw his attention to the Scotch whisky industry? I am sure we will all partake of some of that industry’s goods during the next few weeks of the festive period. The Scotch whisky industry has flourished on the basis of free trade deals done through the EU, such as the one with Korea, but this Government are planning to walk away from those 57 EU bilateral trade agreements and try to reach free trade agreements with countries such as India, which will want to maintain its 150% tariff on Scotch whisky.

[Mr Leslie]

Absolutely. My hon. Friend makes his point well. The idea is that we should turn a blind eye to the trading arrangements we have with our nearest neighbours—50% of our markets—in pursuit, as an alternative or substitute, of some deal with far-flung countries a lot further away, but Australia accounts for 2% or 3% of our current trade and a deal with Australia will not offset many of these problems. It is not just the 50% that we have directly with our nearest neighbours. All those free trade agreements that the European Union has worked up and signed, to which we have been a party, over the past 40 years add up to a further 14% of our trade. So going on for two thirds of our trade is tied into the customs union process—36 bilateral free trade agreements with 63 different countries. How shall we ensure that they continue the day after we exit?

[Mr Baron]

rose—

[Mr Leslie]

I will not give way; other Members want to speak.

The Secretary of State for International Trade and President of the Board of Trade has said, “These can be grandfathered; they can be cut and pasted and we will just sort all those out,” and junior Ministers at the Department for International Trade have said in the past, “Those countries have all agreed to roll them over.” That is not the case. Maybe a bit of dialogue has begun, but those other countries might want to take the opportunity to reopen some of those long-standing agreements—who knows? The Minister will give us the answers when he winds up the debate.

[Mr Baron]

rose—

[Mr Leslie]

I want to conclude my remarks because others want to speak. I simply want to make a final point about why the customs union is such a crucial issue, and why I urge my hon. Friends on the Front Bench and hon. Members across the House to think about the consequences of not staying in the customs union.

If this country ends up with hard borders again, there will be big consequences. Our ports could grind to a halt. Lorries will clog up our motorways, with, potentially, vast lorry parks near the ports. The expensive, wasteful spending on bureaucratic checks will hurt our industries, and we ought to be evaluating the economic impact of industries, potentially, gradually relocating elsewhere because it is easier to do business in a different jurisdiction. Think of the jobs lost, particularly in the manufacturing sector, if we get this wrong. Bear in mind that we will not have any say on what happens on the EU side of the border after this whole process. There is no guarantee about what happens at the other end of the channel tunnel or in Calais.

The reason I have pushed new clause 13 as I have, is to do with the austerity that we risk in this country for the next decade—a decade of Brexit austerity that will potentially befall many of our constituents because of the lost revenues. Unless we stay in the single market and the customs union, we will have that austerity on our conscience, and I urge hon. Members, especially all my hon. Friends, to think very seriously. We have to make sure we stay in the customs union.

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

It was a pleasure to listen to the speech of the hon. Member for Nottingham East (Mr Leslie). It is like a vintage wine—it improves with age as one hears it on repeated occasions, with mild variations.

--- Later in debate ---

[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.

--- Later in debate ---

[Mr Leslie]

This is an incredibly important Bill. New clause 13 would keep open the option for the United Kingdom to stay in the customs union, which is something I hope particularly my hon. Friends will support. We must avoid that hard border, particularly between the Republic of Ireland and Northern Ireland. We do not want our manufacturing industry to be turned upside down, given all the jobs at stake and the potential of Brexit austerity hitting our constituents for years to come. I do not want that on my conscience. We have to act now, which is why I shall press new clause 13 to a Division.

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

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Paul Blomfield]

I agree absolutely with my right hon. Friend, and I hope even at this stage that Members across the House might join us in supporting amendment 4.

I do not often agree with the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham, but I am delighted to say that in this case I do. She is right that the charter does indeed go beyond the European convention on human rights and that EU retained law will be incoherent without it. Our amendment is necessary, therefore, if we are to achieve the Government’s own stated objective of protecting the rights of UK citizens. This is a crucial issue. The chair of the Government’s own Equality and Human Rights Commission, David Isaac, has said:

“The government has promised there will be no rowing back on people’s rights after Brexit. If we lose the charter protections, that promise will be broken. It will cause legal confusion and there will be gaps in the law.”

These are serious concerns. Human rights should not be a dividing line across the House but should be seen as a British value, and I urge all Members who do not want Brexit hijacked and the rights of UK citizens diluted and reduced to support the amendment.

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

I want to speak briefly to several of the amendments in this group. In particular, I want to encourage the right hon. and learned Member for Beaconsfield (Mr Grieve) to elaborate on his rather carefully crafted new clause 13, which sets out quite a clever solution to the vexed question of EU retained law. He slightly rushed through his explanation of the new clause towards the end of his speech, but as I understand it, he is suggesting that, rather than treating as a new category of law the whole corpus of 40 years of accrued EU legislation, rights and duties that we all enjoy—or not, depending on how they apply—for the purposes of future amendment or reform of those rights and retained law, certain aspects should be treated as primary legislation and others as secondary legislation.

I think the right hon. and learned Gentleman was saying that issues that fell under article 289 should be treated as primary legislation because they were of greater import, and that if we wanted to amend them again in the future we should do so by Act of Parliament, whereas aspects of retained EU law that related to delegated instruments under article 290 should be treated as secondary legislation, and if there were future reforms of those aspects, Parliament could use the secondary procedure. It would be most helpful if the right hon. and learned Gentleman could give us a little more detail about why he felt that those were the right categories to pursue.

[Mr Grieve]

I am certainly not going to make a mini-speech; I said what I felt was sufficient. I offer the new clause not as a perfect solution, but as an alternative to what I consider to be the rather incoherent approach that the Government have adopted. The new clause seemed to me to have some merit, especially because it includes a provision allowing the status of retained EU law to be altered by statutory instrument, so the House could be done with the process quite quickly. I thought that it was a way of trying to resolve what I saw as a practical problem. Let me emphasise that it was not intended to be a weapon with which to beat Ministers on the head. I saw it merely as a sensible way of trying to take things forward, and I present it to the Committee in that spirit. It is not perfect, but represents another way in which we might approach the issue.

[Mr Leslie]

This may seem a dry and technical question, but from time to time Parliament does reflect on the nature of legislation that has been passed. We all assume that it has been accrued through Acts of Parliament or through secondary legislation, but we are now importing a third category, that of retained EU law, into our legal context, and we need to know how to treat it in the future. I do not think that the Government have addressed that question adequately, which is why I think that new clause 13 is of particular interest.

[Catherine West (Hornsey and Wood Green) (Lab)]

One of the perplexing aspects of Brexit is the lack of certainty. Many external advisers have come to see us, both in our capacity as constituency MPs and as people who are concerned about the economy and the legal picture and who are asking for certainty. The new clause would assist that process.

[Mr Leslie]

These issues are very much to do with legal clarity. They are to do with ensuring that the body of our law can operate smoothly and with stability, and that the courts can properly interpret the way in which various rights will apply in the circumstances that our individual constituents may encounter.

You were not in the Chair during the Committee stage, Mr Speaker, but you may recall that we had some discussion about aspects of the charter of fundamental rights. Amendment 4, and amendment 7 tabled by members of the Scottish National party, makes the important point that, as we heard earlier from my hon. Friend the Member for Sheffield Central (Paul Blomfield), this is not a simple “copy and paste” piece of legislation. I agree with my right hon. Friend the Member for Leeds Central (Hilary Benn): it seems very peculiar that the charter has been explicitly excluded from the carrying forward of rights. Ministers say, “Do not worry: all those matters are already covered”, or “Common law can deal with them adequately”, but I do not think that such verbal assurances are good enough, and evidence given to the Exiting the European Union Committee bears that out.

[Charlie Elphicke (Dover) (Ind)]

I read what the report said about the issue of the charter of fundamental rights, and I must say that I thought it very inconclusive. I do not think that the Committee took a strong position on either side of the debate.

[Mr Leslie]

The Select Committee consists of Members in all parts of the House. Far be it from me to interfere with the way in which my right hon. Friend the Member for Leeds Central manages—heaven knows how—to steer through a report compiled by a Committee that is not only august but enormous. Evidence was submitted, however, and I do not think that it can be swept away.

Let me remind the Committee what we are talking about when we refer to the Charter of Fundamental Rights. We are talking about rights that relate to

“dignity, the right to life, to freedom from torture, slavery, the death penalty, eugenic practices and human cloning”.

We are talking about

“freedoms, the right to liberty, personal integrity, privacy, protection of personal data”—

which will be a massive issue when it arises later in our proceedings—

“marriage, thought, religion, expression, assembly, education, work, property and asylum”.

We are talking about

“equality, the right to equality before the law, prohibition of all discrimination including on the basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly”.

Again, some of those rights are not necessarily enshrined in primary legislation, but have accrued because of our membership of the European Union over several decades. We are talking about

“solidarity, the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance…citizens’ rights, the rights of citizens such as the right to vote in elections and to move freely, the right to good administration, to access documents and to petition Parliament”.

We are also talking about justiciable rights:

“the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy.”

We can all point to parts of existing UK law where many of those rights may be covered adequately, but other rights—particularly those relating to children and families and to social policy—are connected very much with EU law.

[James Cleverly (Braintree) (Con)]

The catalogue of rights that the hon. Gentleman has just read out is impressive, without a shadow of a doubt. Will he concede, however, that throughout the glorious history of this place, Governments of all political persuasions have enshrined, in primary legislation and elsewhere, rights that include almost all of those? Indeed, in continental Europe, when many of those rights were being stripped down and attacked, this place had a fantastic track record of defending them both in the UK and in other parts of the world, spilling the blood of our young people in order to do so. How on earth can the hon. Gentleman think that we would strip them away?

[Mr Leslie]

No one is more proud of being a member of this fine body than I am. Parliament is a great institution: I would say that it is one of the greatest democratic institutions in the world. We are perfectly capable of dealing with many of these issues, but the hon. Gentleman unwittingly went against his own argument when he said “almost” all the rights in the charter were covered or duplicated in primary legislation. Not all of them are covered, as was made clear in some of the evidence that the Select Committee heard.

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

Is there not a fundamental inconsistency here? The Government’s reason for not including the charter is that those rights are covered in domestic law, so it would not add anything, but they propose to include thousands of other directives and rules, many of which we would also be unlikely to change in domestic law. The very same argument could be applied to those thousands of other rules that the Bill goes out of its way to incorporate. The Government say, “We do not want to change the labour laws; we do not want to change the environmental rules; we do not want to change the consumer rights.” However, they apply a different logic to the charter. Why does my hon. Friend think that is?

[Mr Leslie]

The logic of the Government is a mystery sometimes, and I wonder whether the Solicitor General actually secretly agrees that these are important rights that need to be defended and that the Government have got themselves into a bit of a pickle, possibly because they drafted this Bill before the general election and therefore before they saw some of the consequences of these things.

[Peter Kyle (Hove) (Lab)]

Those of us who are gay, who went to school in the 1980s and who remember very well the impact of section 28 might baulk at the idea that every Government have given rights and not taken them away. Does my hon. Friend agree that that is a fundamental reason why we need to share and stay within the European Union and the fundamental rights system it provides?

[Mr Leslie]

My hon. Friend is absolutely right. That right of protection for freedoms and liberties on the grounds of sexual orientation is enshrined in the charter of fundamental rights. One of the examples given was civil partnerships where in the future pension rights might be divided but at the time when the partnerships took place certain UK laws were not in place; the charter provides protections against discrimination in a way that existing UK law does not.

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

My hon. Friend is making a strong point and I strongly support what he is saying and Labour Front-Bench amendment 4. I accept that many Conservative Members would strongly defend the rights in the charter and other provisions we have agreed to, but does my hon. Friend agree that the public have reason to be deeply suspicious, because they hear many Conservative Members talk about a race to the bottom in regulation, particularly in employment rights, and about wanting to scrap the Human Rights Act and pull us out of the European convention on human rights? That is why keeping such rights is so crucial.

[Mr Leslie]

That is right, and my hon. Friend will also remember that, before becoming Secretary of State, the right hon. Member for Haltemprice and Howden (Mr Davis) cited many of the rights in the charter in his own legal case against the then Home Secretary, who is now the Prime Minister. The right hon. Gentleman took a case against her and cited many of the provisions in the charter; how strange it is that he now introduces a Bill that does not necessarily carry forward those provisions.

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

My hon. Friend is making an excellent speech. Does he agree that the issue at hand is not whether those of us in this Chamber now might want to change the rights and protections we currently have, but the process by which those laws and rights could be changed and the ease and lack of accountability and transparency that could put them at risk in future?

[Mr Leslie]

I can certainly imagine cases where our constituents, feeling the need to assert some of those rights in the charter in future, find themselves falling foul of the provision in clause 5 that says, all of a sudden, that the charter of fundamental rights is not part of domestic law on or after exit day. They enjoyed those rights hitherto; where would that situation leave them?

The Government, when being sued by the tobacco companies which did not like plain packaging and thought it was against their rights of expression, cited the right to public health in the charter of fundamental rights and managed to defeat those tobacco companies. The charter of fundamental rights proved important not just for our constituents, but for the Government themselves in upholding what was a good piece of public policy at the time.

[Anna Soubry (Broxtowe) (Con)]

I think I played a small part in that, and the hon. Gentleman is absolutely right. Does he agree that all political parties are very keen to appeal to younger voters and that things such as rights really matter to young people, so it could be seen as somewhat ironic that a party that wants to get more young people to vote for it seems to be turning its back on provision for these very important rights?

[Mr Leslie]

I am sure that advice will have been heard in senior quarters. Indeed a vice-chair of the Conservative party, the hon. Member for Braintree (James Cleverly), is sitting on the row in front of the right hon. Lady. He is a very senior and eminent individual now, who has great responsibility for digging the Conservative party out of quite a deep hole.

[James Cleverly]

rose—

[Mr Leslie]

If the hon. Gentleman wants to show us his spade, I will give way to him.

[James Cleverly]

I am not trying to scrape over the point I made earlier, but I am very proud of the history of this place in enacting and protecting rights whether they are in primary legislation or not. The implication of what the hon. Gentleman is saying is that, upon our departure from the EU, unless we bind the hands of Governments of the future in some way, we can no longer trust this place to enhance and protect human rights. Can he reassure me that in no way is he implying that this place will in any way in the foreseeable future row back from its commitment to extending human rights?

[Mr Leslie]

Who knows what will happen in terms of future majorities in this place. The hon. Gentleman is still not explaining to me why this issue of all the issues should not be carried forward into legislation. He says he is in favour of almost all or all, of the rights in the charter, but we know there are examples where problems arise.

[Lady Hermon (North Down) (Ind)]

The Government boast about their protection of human rights, and of course they sign up to UN conventions on the protection of rights of women and children, but they do not then incorporate those rights into our domestic legislation, and because we have a dualist system in terms of international law the rights in UN conventions are not directly applicable in the UK. That is why it is so important that we retain the charter of fundamental rights, and that the Government give a commitment today that they will do so.

[Mr Leslie]

The hon. Lady’s legal experience speaks volumes about the issue. Simply explaining that one is in favour of these rights, having Members on the Conservative Benches say “They are all really important”, saying that in leaflets and posting them through letterboxes at elections, and having Ministers at the Dispatch Box saying, “Trust us, it’s all fine” cannot provide the solid protections that our constituents need in a court of law, whereas the charter of fundamental rights can currently do that.

[Sir Desmond Swayne (New Forest West) (Con)]

They have never been in any of my leaflets. I may be in danger of repeating myself now, but when did that ever stop anyone? The reality is that I remember sitting where the hon. Gentleman is sitting now and being told from the Dispatch Box on this side of the Chamber by his party colleague the right hon. Member for Leicester East (Keith Vaz) that the charter would never apply in the United Kingdom and indeed that it would have no more force than a copy of The Beano.

[Mr Leslie]

As it happens, since that time we have learned that the charter provides extremely important protections for many citizens. I do not think the Government would have cited it in legal actions against the tobacco companies if it were such an unimportant protection.

[Emma Reynolds (Wolverhampton North East) (Lab)]

Does not the right hon. Member for New Forest West (Sir Desmond Swayne) make our point for us? So many on the Tory Benches disregard the importance of the charter.

[Mr Leslie]

I am worried. The right hon. Member for Broxtowe (Anna Soubry) was saying to her hon. Friends, “Be careful because our constituents do care about rights.” She said in particular that younger people care about rights. They really do matter. They may not matter to them in their daily lives today, but they may matter to them or their family or relatives or the environment tomorrow. Those are all things our constituents care about.

[Charlie Elphicke]

The hon. Gentleman has been incredibly generous in taking interventions throughout his speech. When this matter was debated at the previous stage, we had a long discussion on the charter of fundamental rights and it was clear that it divides into three sections. One section is already covered by the Human Rights Act, another section will be meaningless when we leave Europe—it includes rights such as the right to petition the European Parliament—and there is a middle section where there are rights that we should look at carefully. The right way to deal with that is through a constitutional Bill in due course to reset our own rights settlement in this country for all citizens, not just for European law.

[Mr Leslie]

If that were the right way, the Government would have introduced a Bill to provide such certainty, instead of saying, “Mañana. Maybe at some point in the future we will try to close this loophole.” We have the Trade Bill now, as well as the Nuclear Safeguards Bill and a customs Bill. We are supposed to have an immigration Bill at some point, although I suspect that the Government are having a few difficulties figuring out how to bring it forward. These Bills are supposed to be the fundamental underpinnings of the copy-and-paste process that the Government are pursuing. They are supposed to be taking aspects of European Union rules and regulations and ensuring that they will still be here after March 2019, but no Bill relating to the charter of fundamental rights has been brought forward.

[Alex Chalk (Cheltenham) (Con)]

The hon. Gentleman is right about the importance of some of these rights, but may I suggest that incorporating the charter would create complete legal confusion? Under the convention, there is purely a power to make a declaration of incompatibility. Under the charter, however, UK law can actually be trumped. The extraordinary situation could arise in which, if a prohibition against slavery were breached, the courts could merely say that it was incompatible, but if there were a breach relating to data protection, UK law could be trumped. That would create confusion and chaos, which is not what we need in this country.

[Mr Leslie]

Personally, I believe that Parliament does and should value the provisions of the charter of fundamental human rights. I trust our legal system to be able to reconcile textual difficulties between different Acts. I would rather operate on the precautionary principle and have those rights covered within our law than see the protections that are offered to our constituents expunged at this point, only to unwittingly discover later that the rights we used to have under the charter are no longer provided for because the Government of the day did not want to transpose them.

While talking about rights, but in a completely different context, I want to talk about new clause 7, which has been tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). It relates to animal sentience and the welfare of animals—not human rights but animal rights. If there is one issue that can be guaranteed to fill all our inboxes, it is the protection of animal rights. Our constituents really do care about this issue. The Government have already got into a tremendous pickle over this, and it would have been funny if it were not so tragic to see the Secretary of State for the Environment scrabbling around trying to pretend that, all of a sudden, the Government really cared about these matters.

Brexit will affect this area quite considerably. On the International Trade Committee, we heard evidence from various animal rights organisations and others involved in the agricultural trade sector, including the National Farmers Union and those involved with what are known as the sanitary and phytosanitary regulations relating to the import and export of animal products. There is a reason that the Americans dip their chickens in chlorine, Mr Speaker. I do not know whether you have had chlorinated chicken recently. I am not that fussy myself, but perhaps we will be invited to a tasting session at the new American embassy at some point. The reason they dip their chickens in chlorine is that the welfare standards that cover their abattoirs and the way in which their animals are looked after before slaughter are far worse than ours. Before the animals reach the consumer, they need to be cleaned up in a way that is not necessary here in the UK because we have higher welfare standards, not least by virtue of our membership of the European Union. Across all the European Union, we take a precautionary principle when it comes to this kind of regulation. We do not have to dip our chickens in chlorine, because they are already subject to certain health and safety standards.

Animal welfare issues matter in relation to trade as well. I find it perplexing when Conservative Members say that our salvation will be a trade deal with President Trump and the United States. We all know that the primary goal of the United States will be to have a treaty in respect of agriculture. If we do such a deal, the Americans will want to sell us animal products that have been produced under lower welfare and regulatory standards. That will be the deal they will seek. However, if the Secretary of State for the Environment says that we are going to have exactly the same regulatory standards as we have now, he will effectively be telling the Americans that there can be no trade deal. That would be the outcome—[Interruption.] It would certainly be a very big sticking point.

[Charlie Elphicke]

In Dover and Ramsgate in east Kent, we have to put up with the evil and wicked trade of live animal exports, and we have to do that because of European law. We now see an opportunity to stop that evil trade, for the sake of our communities and for animal welfare, by leaving the European Union and taking back control. Does the hon. Gentleman not welcome that?

[Mr Leslie]

There are ways of mending, improving and reforming animal safety standards within the European Union. We should be making the case to do that. We do not want to throw away the benefits that the hon. Gentleman’s constituents enjoy, such as being free from traffic jams—not all the time but on many occasions. If Dover has to institute all the necessary sanitary and phytosanitary checking and inspections, with all the warehousing arrangements and other obstacles and regulations that will be needed at the border because we have left the European Union, his constituents will be mightily annoyed by the bureaucracy that they will encounter.

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

Does the hon. Gentleman agree that, if the Government had had the political will to do this, they could have ended live animal exports by now? There are already references in the EU treaties to public morals, so they could have done it if they had had the political will to do so. Also, if the Government really want to persuade us that they care as much about animal welfare as they claim to do, why on earth would they oppose the new clause? It will simply ensure that we do not have a gap when we leave the EU and before the new Bill, if it happens, comes in?

[Mr Leslie]

The hon. Lady makes a very good point. In relation to specific issues relating to Brexit, the Government are finding, when the rubber hits the road, not only that there are potential problems such as the one relating to an American trade deal but that an awful lot of their constituents are saying, “Hang on a minute, what exactly are you doing about animal rights issues? Where will we be when we exit from these particular provisions?”

[Graham Stringer (Blackley and Broughton) (Lab)]

My hon. Friend knows that we do not agree on many issues relating to the EU, but we were both elected on the same glorious day in May 1997, and he will remember that our postbags then were full of campaigns to stop the export of live animals to Europe. The reason that that did not happen was not a lack of political will. The reason that the Labour Government, the coalition Government and the Conservative Government did not change the law is that it is a fundamental part of the treaty of Rome. That gives the lie to the argument that the EU can be reformed from inside. The treaty of Rome is not going to be reformed.

[Mr Leslie]

Treaties are reformed every time there are adaptations to them, whether it is Maastricht, Nice or Lisbon. The body of European rules and regulations is adapted and reformed all the time. It is all part of working together in co-operation. Sometimes we get our way on particular issues; sometimes we have to continue to argue our case. That is the nature of pooling some of our rules and sharing sovereignty in some respects with our wider neighbours. That is the nature of agriculture and of the environment in which we live.

[Kerry McCarthy]

It is an absolute fallacy to suggest that this Government have been dying to ban live animal exports and that it is only the EU that has held them back. I think it was Germany and the Netherlands that tried in the past few years to put a limit of eight hours, transit time on live exports. The UK went along to those negotiations and argued against those proposals. This is definitely a question of political will.

[Mr Leslie]

My hon. Friend absolutely nails the point and brings it home. She knows a great deal more about such issues than I do. The Government of the day do have a say on the rules and can sometimes effect reforms or block them.

[Mr Jenkin]

rose—

[Antoinette Sandbach (Eddisbury) (Con)]

rose—

[Mr Leslie]

I do have to conclude my speech, but I will give way to the hon. Lady first.

[Antoinette Sandbach]

I am grateful to the hon. Gentleman, but this country is a leader in animal welfare legislation, having introduced the concept of unnecessary suffering in 1915 and, in effect, the first protections for animal welfare, and we have continued that process. Indeed, this Government have reformed animal welfare and this country has high animal welfare protection standards.

[Mr Leslie]

We do have high animal welfare standards. I do not deny that there could always be improvements, but I want to retain what our constituents want, which is high standards. By leaving the European Union in this particular way, I worry that we will be forcing ourselves to chase after trade deals with other jurisdictions that have a totally different approach to regulation. The world effectively has three regulatory philosophies: the Chinese have a particular view of regulation; the European Union has a precautionary principle; and the Americans have a different cost-benefit analysis view of the world. If we depart from the precautionary principle ambit, that will affect agriculture, animal rights and many other issues. It would lead to wholly different and lower regulatory standards, which in some ways is the backdrop to this whole question.

[Stephen Doughty]

rose—

[Mr Leslie]

I will take one last intervention, but then I must conclude.

[Mr Jenkin]

rose—

[Mr Leslie]

No, I have to conclude.

[Stephen Doughty]

I thank my hon. Friend for giving way; he is being very generous. Does he recognise that people are suspicious given that, for example, the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes), who has just joined us in the Chamber, said that the Government were right not to copy the charter of fundamental rights into UK law because lawyers will love the extra rights that it gives? That shows the real intention behind what some Ministers want, which is to bring down the rights that have protected so many people and workers, the environment, and safety.

[Mr Leslie]

I congratulate the hon. Member for Fareham (Suella Fernandes) on her appointment, but I am very much looking forward to her speech, which will perhaps wind up one of the sections of this debate, because Parliament will want to scrutinise her views, past and present. I will conclude with that because I have taken up more than half an hour and other Members will want to contribute.

[Several hon. Members rose—]

European Union (Withdrawal) Bill

Chris Leslie Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Mr Speaker]

Everybody is awake; we have been listening to the right hon. and learned Gentleman with rapt attention.

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

I congratulate the right hon. and learned Member for Rushcliffe (Mr Clarke) on warming up the debate so well. In a way, Mr Speaker, I feel sorry for you in the Chair, because it is perfectly ridiculous that the programme order is such that we have to conclude our series of debates at 4.30 pm when so many issues have not been properly aired on Report. I said that during yesterday’s debate on the programme motion, and I hope that Members in the other place will bear that in mind when they consider the Bill.

I tabled amendments on six issues that I did not think had been adequately covered in Committee. Being a dutiful Member, I felt it my responsibility to table amendments to cover those issues, but I must rush through them, because otherwise I will not exactly be flavour of the month with many of my colleagues.

[Chris Stephens]

Hear, hear!

[Mr Leslie]

Don’t say “Hear, hear” in that way.

New clause 5 addresses a massive topic. It simply says, almost in the words of the Secretary of State for Exiting the European Union, that after we have left the EU, we should have the exact same benefits for the service industries in our country—including financial, legal and professional services—as we have now. The service sector accounts for some 80% of the British economy. During our consideration of the Bill, we have not yet really debated the implications for the service sector. It is often easier to talk about the trade in goods, because goods are tangible—they are physical, and we can imagine them crossing borders, going through ports and so forth—but in many ways we excel in our service sector, so new clause 5 would simply put into the Bill the commitment that Ministers have previously given that they would seek the exact same benefits.

[Hilary Benn (Leeds Central) (Lab)]

rose—

[Mr Leslie]

I do not have much time to go into new clause 5 and I shall try not to take too many interventions, but how can I resist my right hon. Friend?

[Hilary Benn]

Does my hon. Friend agree that on the question of services, never mind goods, this is probably going to be the first negotiation in human history in which a Government have gone into the process knowing that they will come out with a worse deal than the one currently enjoyed? The reason for that is the red lines that the Government have set for themselves. Does not that demonstrate what a profound error this has been, especially when we now know that the decisions on those red lines were taken without any assessment at all of their economic impact?

[Mr Leslie]

Absolutely; I could not have put it better myself. We currently have, in the shape of the single market, one of the finest free trade agreements available to any country anywhere in the world. It is frictionless and tariff-free and, of course, it offers great opportunities for those in the UK service sector to sell their services to 500 million customers. There was nothing about departing from the single market on the referendum ballot paper, so this is a ridiculous red line that the Government should not have put in place. I take this opportunity to gently ask my right hon. and hon. Friends on the Opposition Front Bench please not to acquiesce to the red lines. The fact that the Government have set them does not necessarily mean that they are correct. I want the Labour party to fight for permanent access to and membership of the single market, and I will not stop making that point.

New clause 2 might look a bit lengthy, but it sets out what we should hope to expect to see in the withdrawal agreement that is currently being negotiated by the Prime Minister and the European Commission. I think that a lot of people expected, having passed phase 1, that this was going to be the moment to talk about trade and the sort of deal we were going to get. That is not where we are in the negotiation. We have entered a period of talks about talks—that is simply where we are in this phase 2 arrangement. The article 50 process specifies that, after we have buttoned down a transition arrangement—I shall come to that in a minute—we can perhaps hope to get a framework for our future relationship. That could easily be a single side of A4 with very warm words saying, “Let’s all work together,” and we would then be supposed to depart on our one-way journey without knowing for sure where we were heading.

--- Later in debate ---

[Mr Grieve]

The issue of the withdrawal agreement was supposed to be resolved last December, as part of phase 1 of the negotiations. Does the hon. Gentleman agree that it is abundantly clear that there are massive potential pitfalls, particularly in respect of the relationship with the Irish Republic, in the translation of what appears on the face of it to have been a mutually convenient fudge into what will in fact be a binding treaty obligation?

[Mr Leslie]

That is absolutely right, and the right hon. and learned Gentleman neatly and helpfully moves me on to my new clause 3, which deals with the question of the Irish hard border. I think that many people read the phase 1 agreement in an optimistic light. In many ways, those words were all things to all people. The can was kicked down the road, but there will have to be a translation into some sort of legal text by the time we get to the withdrawal agreement. Heaven help us when the two sides to the negotiations have to start talking in specific terms.

The Prime Minister had a slightly different view from the Republic of Ireland of what the phase 1 agreement meant. She reported back to the House that it was simply to be restricted to the issues listed in the Belfast agreement, which does not, of course, include trade in goods, to mention just one small policy area. There are massive questions about the border between Northern Ireland and the Republic of Ireland. People in that area share reciprocal healthcare, as well as environmental factors such as rivers, streams and lakes. They have a shared energy market and shared fisheries, food and plant arrangements. All those are shared because of the very geography of what are two distinct countries, so trying to fudge the issue just will not work, particularly if the UK is a third party.

[Lady Hermon (North Down) (Ind)]

Is not it essential that at some stage in these Brexit negotiations the Government legislate to protect the fundamental principles of the Good Friday agreement—the Belfast agreement? Those principles include freedom from discrimination, equality under the law and parity of esteem. They are fundamental principles—I could go on listing them, but I will not—so is it not essential that the Government protect them?

[Mr Leslie]

I believe that that is essential. I completely agree with the hon. Lady, which was why I took the exact words from the phase 1 agreement to create the text of new clause 3. If the Government really mean to commit to there being no hard border, they should enshrine that commitment in the Bill. That is the test for the Government—it is what they have to prove if they really believe that this was not just some mealy mouthed commitment to get them through a particular difficulty in the short term.

[Ian Murray (Edinburgh South) (Lab)]

My hon. Friend has spoken about the island of Ireland on many occasions during our scrutiny of the Bill. Could not this complicated issue be easily resolved, and does not the resolution lie in the customs union and the single market?

[Mr Leslie]

That is indeed the case, but the Prime Minister said, “Oh no, that’s a red line.” The difficulty is that Prime Ministers can get into stubborn positions. Are they going to have to back down? How do they deal with these things? It would be a measure of the Prime Minister’s status and stature were she to say, “On reflection, I have looked at this issue and it cannot be solved.” I know that the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes), will be encouraging the Prime Minister to do that, because she has that way about her. The Prime Minister should change her mind and say, “Things have changed.”

[Stephen Doughty]

My hon. Friend is obviously making some absolutely excellent points, but the crucial thing is how all this matters practically for people and businesses. I wonder whether he saw yesterday’s concerning announcement about the opening of a new ferry route between Spain and the Republic of Ireland. The port of Cork expressly said that it was doing that to avoid having to come through all the Brexit uncertainty that was being created in the United Kingdom.

[Mr Leslie]

I did indeed see that. Think of all the distorting arrangements that will pop up.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

Will the hon. Gentleman give way?

[Mr Leslie]

If the hon. Gentleman will allow me, I must make some progress, because I have to talk about new clause 4, which relates to the divorce bill—the payment or the settlement. The Prime Minister said that the amount would be somewhere between £35 billion and £39 billion. When the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham, was on “Question Time”, she said that that was absolute nonsense and would never happen, but it turns out that £39 billion equates to over £700 for every adult in the UK. That is how much we are talking about. That is £700 a head for all the men and women in her constituency who voted for her and all those who did not vote. Strangely, that did not feature on the side of the red bus, and the notion of £350 million a week for the NHS has disappeared into thin air. We do not want to catch that particular bus ever again.

I am glad that the right hon. Member for Loughborough (Nicky Morgan), who chairs the Treasury Committee, has written to the Comptroller and Auditor General of the National Audit Office to ask him to examine the reasonableness of the sum. The phase 1 agreement said that a methodology had been agreed between the two sides to calculate the sum, but that has not been made available as far as I can see. I hope that the NAO will have that methodology, and that it will go through the agreement with a fine-toothed comb to find the exact figure that our constituents will end up paying.

Amendment 39 seeks to tease out what is happening on the question of transition, for which there are all sorts of metaphors. My hon. Friend the Member for Streatham (Chuka Umunna) talked about there being no safe harbour, but the metaphor I like to give is that, if we have a cliff edge, transition is about our having a plank going a few feet out from the cliff edge: it would perhaps give us a bit of extra time, but it would not obviate the precipitousness of the fall that could affect the country—it simply defers when that will happen. The European Union side is absolutely clear that if we are going to have a transition, it will need to be on exactly the same arrangements that we have now, minus having Britain around the table with a say on the rules. That was why I tabled amendment 39. The Government have to get on with securing a transition, and the Chancellor was right to talk about it as a diminishing asset.

The arrangements had better be visible and available for businesses to see by the time we get to Easter and the March European Council meeting, because they need to know what will happen. Otherwise, quite naturally, they are going to have to make contingency plans to protect their business thereafter. I was talking to the American Chamber of Commerce to the European Union, which has come up with the sort of transition deal that it believes that many of its firms that work and invest here, employing many of our constituents, want to see. It thinks that a transition needs to have two distinct aspects. First, there needs to be a bridging period during which we can settle all the rules, finish all the negotiations, and establish the treaties and procedure. That will definitely take more than 21 months, and I saw that the chief executive of the EEF was completely scathing yesterday about how little could be achieved in the period currently envisaged. Secondly, there needs to be an adaptation period—a phasing in of the new rules. We need to start getting into exactly what the transition will involve, and that was why I tabled amendment 39.

My final point is about new clause 6, on which I will seek the views of the House if I get the opportunity. It relates to what will happen if unforeseen circumstances arise in the process. What will right hon. and hon. Members do if the Government come back with an unacceptable deal? We need to know what our options are. We have asked the Prime Minister on many occasions about the article 50 process. It is a notification process, and she sent the letter in, but when we ask whether the process can be extended, altered or revoked, she says that that is not the Government’s policy. That, of course, is not the question we are asking. We are asking whether the process can be extended. What is the legal advice? The Government have obviously taken legal advice, and I suspect that it says that the UK, if it so chose and the circumstances arose, could unilaterally revoke article 50. We would of course have to do that before exit day, because if we chose to do so after exit day, we would be looking to apply to rejoin the EU under article 49, which would mean our losing many of the benefits in our current deal. We in the House of Commons need to know the options available to us.

[Liz Kendall (Leicester West) (Lab)]

On that point in particular, does my hon. Friend agree that all the new clauses and amendments are about trying to get greater openness and honesty about the pros, cons and trade-offs of the choices we face as a country? It is vital that that information is available not just to this House, but to the public. It is our job as Members of Parliament to put it before the country, because these huge decisions have big consequences, but we have had to drag the Government every step of the way towards putting such information before the country.

[Mr Leslie]

My hon. Friend is absolutely correct. It is important that our constituents know that nothing is inevitable. One parliamentary decision cannot bind a successor Parliament, because Parliament has the capability to do a number of things. Although the article 50 notice signalling the Government’s intention has been sent in, it is not a binding commitment.

[Sir William Cash]

rose—

[Mr Leslie]

It might be my intention to give way to the hon. Gentleman, but I might change my mind by the time I get there. I can walk towards a Division Lobby while thinking that it is my intention to vote for a particular issue, but I might change my mind at the last minute. We are all able to change our minds. That is the nature of life, and we can all do the same in a dynamic democracy and Parliament.

Article 50 says that treaties shall cease to apply from

“the date of… the withdrawal agreement or, failing that, two years after the notification”,

but we will have left only after those events. Article 50 is of course silent on what happens during the two-year interim period before the agreement. We are still full members of the European Union, prior to the withdrawal agreement or the expiry of the two-year period, so it stands to reason that we should continue to act as such. The framers of article 50, who include Lord Kerr, said that a “request readmission after negotiation” clause was not necessary because that was taken as read. That is how the 1969 Vienna convention on the law of treaties operates, and it is accepted by many jurisdictions around the world. Article 68 of the Vienna convention states:

“A notification or instrument… may be revoked at any time before it takes effect.”

That is the widely understood nature of such treaties.

[Sir William Cash]

I just thought that I would draw the hon. Gentleman’s attention to the European Union (Notification of Withdrawal) Act 2017. I do not think that he voted for it, but 499 other Members did, and it passed the House of Lords, so I would have thought that that would be quite a difficult problem for him to overcome.

[Mr Leslie]

No Parliament can bind its successor, and that Act was passed in a different Parliament. It may not be necessary for the UK to consider extending or revoking the article 50 process, but it might prove necessary. MPs and the public have a right to know that such options are available. Nothing is inevitable about this whole process. Choices and options are available to this country, and the Government should publish their legal advice and a summary of that advice. There is ample precedent for doing that. Indeed, when the right hon. and learned Member for Beaconsfield (Mr Grieve) was Attorney General, he published summaries of legal advice. The measure does not even ask for a breach of the confidentialities between client and legal adviser, but this House is entitled to a summary. We need to know and the public need to know, which I is why I want to press new clause 6 to a Division, if I get the opportunity.

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

There will be a change of tone, because the speeches so far have been understandably wide ranging, and mine will be much more narrow and technically focused and also much shorter. I say by way of preface that it is both strange and regrettable that the analysis of my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) was not adopted by the remain campaign, because we might have been saved a great deal of trouble if it had been. Frankly, he speaks passionately and well, and I prefer the economic analysis as to risks and/or benefits of someone who was one of the most distinguished post-war Chancellors to that of those who have not had the opportunity to hold those exalted positions and whose view of the matter sometimes seems a little more based on articles of faith than on practical experience.

European Union (Withdrawal) Bill

Chris Leslie Excerpts

Ping Pong: House of Commons
Wednesday 20th June 2018 Commons Chamber

[Mr Kenneth Clarke]

I shall make the shortest speech here that I have made for very many years—[Hon. Members: “Ever!”]—and I shall take no interventions. [Interruption.] Well, the Government are restricting debate on this European issue as ferociously as they are trying to restrict votes and powers. I voted against both the previous timetable motions. With no explanation, we have been told that we have an hour and a half for this extremely important issue today. Presumably, it is to allow time for the interesting debate that follows, taking note on the subject of NATO, which could be tabled at any time over the next fortnight and has no urgency whatever. None of us are allowed to say very much about this matter.

The Government have been trying to minimise the parliamentary role throughout the process. That is only too obvious. I will try to avoid repeating anything that others have said, but the fact is that it started with an attempt to deny the House any vote on the invocation of article 50, and litigation was required to change that. A meaningful vote has been resisted since it was first proposed. The Government suffered a defeat in this House during the earlier stages of our proceedings before they would contemplate it, and then they assured us that they would not try to reverse that; there would be a meaningful vote. But actually, because that amendment needs amplification and the Bill needs to be made clearer, we now have this vital last stage of Lords amendments and the final attempt to spell out what meaningful votes and parliamentary influence are supposed to mean, and it is being resisted to the very last moment.

Last week, I thought that the Government would be defeated because of their resistance. I was not invited to the negotiations. I do not blame the Chief Whip for that in the slightest. I have not fallen out with him personally, but I think that he knew that I would take a rather firm line as I saw nothing wrong with Lord Hailsham’s amendment if nothing else were available. My right hon. and hon. Friends, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), actually believed that they had undertakings from the Prime Minister, and I believe that the Prime Minister gave those undertakings in good faith.

My right hon. and learned Friend for Beaconsfield negotiated with a very distinguished member of the Government acting on the Prime Minister’s behalf, and they reached a firm agreement. That agreement is substantially reflected in Lords amendment 19P and my right hon. and hon. Friends expected that it would be tabled by the Government. It was not. And now the Government are resisting the very issue upon which last week a very distinguished member of the Government reached a settlement—to use the legal terms—because the Government are not able to live up to their agreement. We are being asked to substitute, for a perfectly reasonable Lords amendment, a convoluted thing that would mean arguments about the Speaker’s powers if it ever had to be invoked.

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

There are only two issues that come out of this debate. The first is about honour. The right hon. and learned Member for Beaconsfield (Mr Grieve) tried to ensure that he got a deal from the Prime Minister. He went with other Members to negotiate with her and she made a promise to him about an amendment, but that promise was not necessarily fulfilled in the interpretation of the Members who heard her say it, so the House of Lords had to send this issue back to us today. This issue is definitely about honour. Other hon. Members have said that they believe that the House can pass resolutions and motions, and that they will be honoured, even if they are not necessarily binding. I believe that the right hon. and learned Member for Beaconsfield is an honourable man, and he is again taking the Government at their word.

That brings me to the second issue, which is that this is also about Parliament. If the right hon. and learned Member for Beaconsfield has achieved anything, it is that he has moved the Government from where the Prime Minister was on “The Andrew Marr Show” on Sunday, when she said that Parliament cannot tie the hands of Government. The right hon. and learned Member for Beaconsfield has managed to extract a statement from the Government, who are now saying that it is open for Members to table motions, that parliamentary time will be provided, and that it is open for this House, through Mr Speaker, to ensure that motions and decisions can be made. The right hon. and learned Gentleman believes that that is worth having and it is indeed true that it is a step forward. The difference that I have with him is that he believes that the Prime Minister and the Government should be given the benefit of the doubt yet again; I would suggest that he should not and could not necessarily trust their word. That is where we differ.