European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[Matthew Pennycook]

The hon. Gentleman may have missed my point. I completely accept the fact that these rights will be brought into UK law, that they will not be underpinned by EU provisions and that many of them were there first and have been added to over the decades of our membership. What we are talking about here is ensuring that retained EU law cannot be chipped away at by secondary legislation—that it has an enhanced status and must be amended only by primary legislation debated in full in this Chamber.

[Mr Dominic Grieve (Beaconsfield) (Con)]

The hon. Gentleman is right. It is the curiosity of this legislation that laws that the public, if we were to raise these issues with them, would regard for the most part as being of very considerable importance are being brought to the lowest possible status on their return here, and without there really being an opportunity, for obvious reasons, to revisit this issue domestically in a way that might lead us to enact fresh legislation.

[Matthew Pennycook]

I could not have put it better myself. That is precisely the problem, and that is precisely what new clause 58 seeks to address.

The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness, but irrespective of what happens, retained EU law, as defined in the Bill, is vulnerable to secondary legislation contained in other Acts of Parliament, which will have been drafted in a very different context—in the context of a country whose long-term future appeared to reside unambiguously in the European Union.

Perhaps the most potent example is the Legislative and Regulatory Reform Act 2006. Part 1 provides for Ministers to introduce statutory instruments to remove burdens resulting from legislation, including primary legislation. A burden, for the purpose of that part of the Act, includes a financial cost or

“an obstacle to efficiency, productivity or profitability”.

That Act is a potent piece of legislation as it is, but it will be far more so as a result of this Bill if it can be used to alter a raft of EU rights and protections that are currently underpinned by EU provisions.

This is not just about the powers in the Legislative and Regulatory Reform Act. Other examples come to mind, such as section 5 of the Localism Act 2011 and section 11 of the Public Bodies Act 2011. All contain wide powers to alter regulations, and all were passed in the constitutional context of our rights and protections being underpinned by our EU membership. All will become more powerful after exit today.

Retained EU law would also be vulnerable to recently proposed legislation and legislation currently making its way through this place. For example, the Nuclear Safeguards Bill, which is currently in Committee in this House, contains proposed new clause 76A(6) to the Energy Act 2013, which provides that the delegated power in section 113(7) of the Energy Act can be used to make changes to retained EU law. Similarly, clause 2(6) of the recently published Trade Bill provides for regulations that can be used to modify primary legislation, including retained EU law. The same, we can only assume, is likely to be the case for the immigration, agriculture and other Bills we expect in the coming months as part of the process of legislating for Brexit.

New clause 58 would ensure that regulations of the kind provided for by those Bills could not be used to amend or repeal retained EU law in the five areas I have set out, thereby according them a level of enhanced protection. That is important because any future Government could easily use secondary legislation contained in a variety of past and future Acts of Parliament to chip away at rights, entitlements, protections and standards that the public enjoy and wish to retain.

In the interests of brevity, let me illustrate the risks posed if we do not pass new clause 58 or a similar new clause, by focusing on employment entitlement, rights and protection. As hon. Members will know, a substantial part of UK employment rights is derived from EU law, and an even larger body is guaranteed by EU law. As such, key workers’ rights enjoy a form of enhanced protection. Those include protections against discrimination owing to sex, pregnancy, race, disability, religion and belief, age, and sexual orientation; equal pay between men and women for work of equal value; health and safety protection for pregnant women, and their rights to maternity leave; a degree of equal treatment, in broad terms, for the growing number of fixed-term, part-time and agency workers; rights to protected terms and conditions, and rights not to be dismissed on the transfer of an undertaking; and almost all the law on working time, including paid annual leave and limits on daily and weekly working time.

Whether it is the working time regulations guaranteeing rights to holiday pay and protections from excessive working hours, which will be preserved via clause 2 of this Bill, or the right to equal pay contained in article 157 of the treaty on the functioning of the European Union, which will presumably be preserved via clause 4, these rights will not enjoy enhanced protection after exit day and will be at risk of amendment from regulations set out in other Acts of Parliament if this new clause or a similar one is not passed.

Now, it is true the Government have promised to ensure that workers’ rights are fully protected and maintained after the UK’s departure from the EU, but in the absence of stronger legal safeguards, there are good reasons to be sceptical about that commitment.

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[The Second Deputy Chairman of Ways and Means]

Obviously I would not comment on the order of selection on the Floor of the House, but the Leader of the House is here and I am sure that she will have heard the hon. Lady’s comments.

[Mr Grieve]

It is a pleasure again to be able to participate in this debate.

The new clause in the name of the Leader of the Opposition raises a really important issue about the way in which the Government have approached the whole question of retained EU law. To be clear at the outset, and it is worth repeating, the Government’s aim—to bring EU law into our own law, retain it there to ensure continuity and then, over time, to take such steps as this Parliament wishes to take to replace it or change it—makes absolute sense. But as we discussed yesterday, the difficulty that arises is that the origins of EU law mean that it has come into the law of this country in ways that are totally different from our usual process of primary and secondary legislation. [Interruption.] Does my hon. Friend the Member for Stone (Sir William Cash) wish me to give way? I thought that he said something from a sedentary position.

[Sir William Cash]

Not yet.

[Richard Drax (South Dorset) (Con)]

I said, “That’s why we are leaving”, in response to my right hon. and learned Friend’s comments.

[Mr Grieve]

I understand that that is why my hon. Friend thinks we should go. As he knows, I personally think that in the globalised world in which we operate, as we mentioned yesterday, the notion that the only source of law is likely to be the domestic Parliament of one’s country is rather fanciful, given that we are currently subordinate or have signed up cheerfully to all sorts of areas of international law without any difficulty at all. I accept, without wishing to go over old ground, that the way in which EU law operates in this country through its direct effect does pose some issues that have particularly exercised my hon. Friend the Member for Stone. Nevertheless, the idea that all sources of law in this country come from this House is wrong, full stop.

The question is how we make sure that in bringing this law into our own law, we preserve its essence—because that is what the Government say they want to do—until such time as we as a domestic Parliament decide that we want to do something about it. The problem that has arisen is that, as currently drafted, the importation of EU law means that standards in areas such as equalities and the environment will no longer enjoy the legal protection that EU membership gives them—indeed, they will, for the most part, be repealable by statutory instrument.

On the whole in this House, we would not think it appropriate to do that with our own primary legislation, and this legislation is undoubtedly important enough to have primary status. That is because clauses 2 to 4 on retaining most EU-derived law are worded in such a way as to turn it principally into secondary legislation in United Kingdom law.

[Mr Rees-Mogg]

There seems to be an inconsistency in what my right hon. and learned Friend is saying. He has been happy for law to come into this country and become our senior law having been approved by a qualified majority vote in which the British Government may have voted against, but he would object to its being repealed through a statutory instrument subject to a parliamentary process in this House and the other place.

[Mr Grieve]

I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law—five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My right hon. and learned Friend concedes that two wrongs do not make a right. May I point out to him that the introduction of qualified majority voting was an achievement of the Thatcher Government? We persuaded the European Union to adopt the single market because we did not want small countries to be subjected to little pressure groups holding up very important standards that we needed to achieve in the new market we were creating. Mrs Thatcher sent as her commissioner Arthur Cockfield, who presided over several thousand of those being introduced so that the single market could get under way.

[Mr Grieve]

My right hon. and learned Friend is entirely correct. If I may explain, I was simply attempting—although I sometimes find it quite difficult—to put myself into the position of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who had explained his distaste. Having done so, I was trying to explain why he should still be concerned. I could not agree more with my right hon. and learned Friend. I am not troubled by the way in which this law has come into our country. We have kept our sovereignty. We made a choice to do this, and we did so because of an awareness of how, as international relations develop, it was in our national interest. That may represent a philosophical difference, but as I pointed out, there is all sorts of international law out there that binds us that did not originate in this Chamber.

We should be concerned about the fact that these laws matter. I do not know whether they matter to my hon. Friend the Member for Stone or other hon. Members, but if we go out into the street and ask people whether equality law—

[Rachel Maclean (Redditch) (Con)]

I accept that my right hon. and learned Friend has considerably greater knowledge of these matters than I do, so I wish to ask him about a more general point. I take on board his detailed points about how law is made in this place. However, does he accept that we have very good laws that were made outside the EU—for example, the health and safety legislation that was made domestically in our Parliament? With regard to Labour Members saying that we are not concerned with workers’ rights—

[Rachel Maclean]

Does my right hon. and learned Friend agree with me on that point?

[Mr Grieve]

I do. I entirely accept that it is within the wit and ability of this House in future to replicate, if we so desire, many areas of law that currently come from the EU, but at the moment we do not have time to do that. We are taking in law that really matters to people out in the street. I suspect that the vast majority will have no idea where this law originates from; they will just say, “Actually, my employment rights are rather important.”

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I will carry on for the moment and then give way.

People will value that law, and yet we are bringing it in and giving it a status that I regard as very unsatisfactory. There are a number of ways in which that could be addressed, including new clause 2, which has been tabled by the Opposition. I have tabled new clause 55, which I will briefly explain. It looks at the nature of retained EU law, establishes a general presumption that retained EU law may be amended only by primary legislation or subordinate legislation made under the Bill that we are enacting, and provides a framework for the Government to stipulate specific provisions of retained EU law that are merely technical, and therefore appropriate to be amended by subordinate legislation. I do not have any objection to that happening, but the rest would have to be dealt with by primary legislation. The new clause would provide much greater legal certainty about powers for future amendment of retained EU laws, and it would give the Government flexibility to amend technical provisions quite freely.

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[Mr William Wragg (Hazel Grove) (Con)]

Given the concerns in the House, will my right hon. and learned Friend tell us which party introduced such legislation in the 19th century?

[Mr Grieve]

Yes, indeed: the Conservative party did precisely that. There is a proud record in the Conservative party—as, indeed, there is in the Opposition—of contribution to that process. I make it quite clear that I do not put the smallest imputation that those on the Treasury Bench, or on any of my colleagues in government, want to reduce those protections one bit.

[Sir William Cash]

I want to put on the record that I have a lot of sympathy with the idea of an enhanced sifting scrutiny process, as my right hon. and learned Friend knows. I am glad to note that he puts an emphasis, which I am sure we all agree with, on primary legislation. The only question that I want to raise with him about his earlier remarks concerns his enthusiasm for the manner in which the legislation was made in the first place. I make the point yet again that it was done, to an extraordinary extent, behind closed doors and by a process of consensus that cannot possibly be justified.

[Mr Grieve]

I understand where my hon. Friend comes from, in view of his long-held concerns about these issues. But I ask him to consider the fact that one consequence of our EU membership—I have to accept this—is that in some areas in which law might have developed domestically, it has not done so in the 45 years of our membership, because we did it in common with our European partners. That is just an historical fact. Because it is an historical fact, we have to grapple with how we make sure that we do not throw the baby out with the bathwater.

[Frank Field (Birkenhead) (Lab)]

Does the right hon. and learned Gentleman feel, as I do, that from the Back Benches on both sides of the Committee is emerging an agreement, to which we wish the Government to respond? New clauses 50 and 51, tabled in my name and those of hon. Friends, are designed to make us look, first of all, not at laws from all over the world—we are, after all, debating the EU (Withdrawal) Bill—but at law from the EU. The new clauses would ensure that we put all EU law and regulations on to our statute book and allowed the House of Commons—we are not talking about a Henry VIII clause—to decide how we should review it.

My only slight worry with the new clause that the right hon. and learned Gentleman has tabled is that it will tie the hands of a future Government, as he accused me of doing yesterday. It might be that, on reflection, there are better ways of reviewing EU law than involving the whole House in primary legislation.

[Mr Grieve]

I read the right hon. Gentleman’s new clauses, and I can understand where he is coming from. If one looks at the totality of the amendments and new clauses in today’s debate, one sees that they are all trying to do, roughly speaking, much the same thing. The question is not the exact route that is adopted, but how the Government respond to that challenge. I do not want to take up more of the House’s time, but—

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

In case my right hon. and learned Friend is coming to a conclusion, I want to ask him this question. I think we all hope that the Government will propose some mechanism for sifting, but does he intend to make a binary distinction between delegated legislation, which could mean exclusively negative resolution, and primary legislation? Alternatively, is he willing to accept, as I think I would be, the possibility of a sift that involves allocating some tasks to the affirmative resolution procedure, and only some others to primary legislation?

[Mr Grieve]

I understand my right hon. Friend’s point, but I wonder whether we are in danger of straying into another topic. There is an issue about the operation of the mechanism for implementing the changes and taking us out of the EU. I keep confidently hoping that the Government will be able to respond positively to that by having an adequate sifting mechanism for Parliament. Even when that has taken place, the changes envisaged for EU law are, as far as I can see, of a semi-permanent or permanent character. They are about the nature and quality of the law that we have decided to bring in, rather than the manner in which we have decided to do so. New clause 55 is very similar to new clause 25, tabled by the hon. Member for Bristol East (Kerry McCarthy), and they seek to look at the matter in slightly different ways. The question is how the Government will respond.

That raises, perhaps, a more fundamental issue about the process of debate in this House, on which I hope the Government will be able to provide some reassurance this afternoon. I do not know how other hon. Members found it, but I found yesterday hugely instructive, not because it led to some votes—it did so, but let us leave the votes out of it—but precisely because it gave us the opportunity to have a cogent and sensible debate about problems on which, as we proceeded, we began to perceive that there might indeed be a degree of consensus. The problem is that we always run up against the sense that if the Government come to the Dispatch Box and say, “This is very interesting, and we will think about it,” but we do not do something about it then and there, we may lose our opportunity ever to do something about it. We will, of course, have the opportunity of Report stage, should the Bill have one.

[Vicky Ford (Chelmsford) (Con)]

I want to pick up my right hon. and learned Friend’s point about consensus. As I understand it, new clause 55 is designed to send a clear message that the Government do not intend to lower standards for the environment, financial services or consumers without an open and transparent process. I have heard Ministers say from the Front Bench again and again that they do not intend to lower those important standards. Does he agree that that is an important message to give to our future trading partners in Europe?

[Mr Grieve]

I agree entirely with my hon. Friend. If we are to have a deep and special relationship, it is inconceivable that we could dilute the rights that have been created.

[Geraint Davies (Swansea West) (Lab/Co-op)]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

I will give way, but then I want to bring my remarks to an end.

[Geraint Davies]

On that point, can the right hon. and learned Gentleman envisage a point in the future—it could be a very short time away—when tariffs are imposed and economic circumstances are such that businesses demand reductions in cost? Businesses will turn to the four weeks’ paid holiday, the 48 hours directive or anything else that will cut their costs, and the Government will be tempted to abolish those rights.

[Mr Grieve]

I do not think I am quite as apocalyptic as the hon. Gentleman, because I happen to think that, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said in his speech yesterday, the idea that the UK suddenly wishes to translate itself into a country of no regulation and no protection at all is fanciful. I have never seen the smallest sign of that from any section of the public. Indeed, one of the things that brings us together as a nation is agreeing that quality of life matters while, at the same time, wishing to develop a cohesive society.

[Frank Field]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

I give way for the last time, because I really want to bring my remarks to an end.

[Frank Field]

Is it not true that the clearer the message we send out from the debate on this Bill that we are adopting the whole corpus of laws and regulations, the easier it will be to do a trade deal because we will be competing on the same terms?

[Mr Grieve]

The right hon. Gentleman makes an important and interesting point, to which I have no doubt the Government will respond. As I have said, however, I do not wish to be prescriptive. I want an assurance from the Government that this matter is being looked at, and that it cannot really be divorced from some of the things we will look at next week, or whenever the Committee sits again.

My desire is that we should have such debates. I do not wish to force the Government’s hand, even though that may appear superficially attractive. I do not actually wish to put new clause 55 to the vote; it has problems of its own. However, I put the Government on notice that we are going to have to draw together the issues we are debating today, and I am convinced that we will debate similar issues next week.

All those issues derive from the same problem about the way in which the Government have approached and have at the moment drafted the legislation, and that problem must be remedied. It can be remedied, and I am happy to work with the Government to try to ensure that it is remedied. If necessary, we can come back to this on Report—on the assurance that we will have a real opportunity to do so on Report—and then pull the strands together and produce a package that will command some consensus across the House. I very much hope to hear that from the Government this afternoon, if I am not to be tempted to put my new clause to the vote.

[Peter Grant (Glenrothes) (SNP)]

I rise to speak to amendments 200 to 201 in my name and those of my right hon. and hon. Friends, and to new clause 45, which will be decided on at a later date. I also want to support amendment 217, tabled by our colleagues in Plaid Cymru.

Last week, with several members of the Brexit Select Committee, some of whom have already spoken about this, I went on a very informative visit to Brussels and Paris. It was very informative partly because the people we spoke to were so well informed and so forthcoming. They appeared to be a lot better informed and more forthcoming about what Brexit is really going to mean than a great many Conservative Members and, indeed, than some Conservative Front Benchers.

In about 20 hours of meetings, the shortest and most perceptive comment we heard—this sums up where we now are with Brexit—came from a member of the European Affairs Committee of the French Senate. He quite simply said, “Quelle pagaille!”—“What a mess!” I replied that if he thought it looked like a mess from the French side of the channel, he should try looking at it from the United Kingdom’s point of view.

We have a Government who rushed into a referendum too soon, at a time when the UK population was the least well-informed in the whole of Europe of what Europe is actually about. Article 50 was triggered in indecent haste—far sooner than it needed to be—simply to pacify some of the more rabid Brexiteers on the Government Benches.

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[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

May I make progress? I would be grateful, as I need to make progress on the amendments. I think I have been more than generous in giving way. I will move on to try to ensure that I deal with all the points that have been raised.

May I deal first with health and safety legislation? There has been a lot of proper debate about that. The way existing powers are used—the way the UK meets its obligations to implement EU law—is most typically through regulations that are made under the 1972 Act, but regulations are also made under a range of other Acts for these purposes, sometimes in conjunction with the 1972 Act powers and sometimes not. For example, some health and safety regulations are made using the Health and Safety at Work etc. Act 1974 and the 1972 Act where the 1974 Act alone cannot provide the vires, or powers, for those regulations.

One example is the Control of Major Accident Hazards Regulations 2015. They are made for the purposes of health and safety and of environmental protection, the latter being outside the vires of the 1974 Act. Those regulations prevent and mitigate the effects of major accidents involving dangerous substances, which can cause serious damage and harm to the public and to the environment. The parts of the regulations made under the 1974 Act can continue to be updated after exit under existing powers conferred by that legislation.

As I have set out, clause 2 rightly takes a maximalist approach to preserving direct legislation. It sets it out that any domestic legislation that implements EU obligations or is otherwise related to the EU or the EEA will continue to have effect after our exit. The effect is that those regulations will therefore become retained EU law within the meaning given in the Bill. So it is absolutely right that after we have left the European Union, domestic powers granted by Parliament in other Acts can operate on what will become retained EU law, and as such will be our domestic law. This is so that appropriate changes can be made in future, in line with any domestic policy, where they are within the scope of those powers and the will of this place.

In contrast, the amendments would fetter powers across the statute book that Parliament has already delegated. Relying only on powers set out in this Bill to amend retained EU law would be insufficient and would defeat the purpose of what Parliament has previously set up in the 1974 Act, for example, and other Acts. As I have set out, these powers are in many cases very important and help to deliver functioning regimes. Each of them also contains its own limitations. Those limitations were agreed by Parliament when it agreed to create the powers in question.

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[The Solicitor General]

The right hon. Gentleman is old enough and wise enough to know that, while this exercise of freezing the law in time on exit day has to be done, the law is a constantly evolving creature. None of us can stand here and bind the hands of our successors. What we can do, as men and women of good will seeking to achieve as sensible and smooth a Brexit as possible, is provide legal certainty. That is why I am here. That is why I have undertaken to try to deal with this task. That is why this Government are doing everything they can, within the time they have, to get this right.

[Mr Grieve]

I have been listening carefully to what my hon. and learned Friend has been saying. Again, there seems to be an overlap. There are issues about how Parliament conducts scrutiny, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) has mentioned. That is also covered in proposed new subsection (3) of my new clause 55. There is also the question about modifications to some areas of retained EU law taking place in any way other than by primary legislation, in the longer term. Keeping those two points in mind, may I invite him to go away and see, as the discussion continues, what the Government can come up with by way of a package involving those two elements that might commend itself to the House, bearing in mind the undertaking that he has given to look at this afresh on Report and for the Government to respond positively on Report to what has been said?

[The Solicitor General]

Yes, I am happy to do that. That is very much in the spirit what I have already said.

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[Mr Grieve]

Has the hon. Gentleman given any consideration to what the words

“enforced, allowed, and followed accordingly”

are supposed to mean? I confess that, on reading clause 4 1(b), I found it very difficult to understand what the Government intended.

[Matthew Pennycook]

That point is very well made. I expect that other hon. Members will touch on that in more detail when they speak to amendments 93 to 95.

We support amendments 148 to 150 and new clause 34—the efforts of my hon. Friend the Member for Stretford and Urmston to remedy deficiencies in the Bill with respect to the rights of children. Her amendments are designed to preserve in domestic law any rights or obligations arising from the UN convention on the rights of the child, to ensure that Ministers act in such a way as to comply with that convention, and to protect from the delegated powers in the Bill the rights and obligations that flow from the convention.

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[Dominic Raab]

I am going to make a little progress; I am mindful of your strictures, Mr Streeter. I will take interventions on the amendments, but let me just explain the relevance of clause 4.

I will give just a flavour of the kinds of rights or obligations captured, which would include the EU-derived rights to equal pay and non-discrimination on grounds of nationality. In the context of something like competition law, it would include the prohibition on the abuse of a dominant position. The explanatory memorandum gives further illustrations. Ultimately, given that the criteria for directly effective rights are determined judicially, the scope of such rights must be for UK courts to determine. That is why it would not be right for us to draft our own definition or definitive list.

Clause 4 only converts rights as they exist and are recognised immediately before the date of exit. It serves as a snapshot of EU law on the date of exit, and guarantees a smooth legal transition out of the EU—in respect of everything of value, importance and significance—for businesses and citizens up and down the country.

[Mr Grieve]

That brings me neatly to the question as to what it means that a right should be “allowed” immediately before exit day. It seems that that word particularly, of those three, “enforced, allowed and followed”, is astonishingly opaque.

[Dominic Raab]

I will come to the precise application shortly, but I am happy to take another intervention if my right hon. and learned Friend does not think I have answered his question sufficiently by the end.

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[Dominic Raab]

I am going to make a little progress, again mindful of the guidance that I have received.

Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs, who was here earlier and I am sure is coming back, announced only last week our intention to publish a new comprehensive national policy statement setting out the environmental principles driving UK policy, drawing on the EU’s current principles and underpinning future policy making. The point about its relative significance, value and status was very well made by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I ally myself with his remarks. We will consult on it early next year. This is not just blue-sky thinking—it is coming imminently.

Critically—this touches on the point made by the Chair of the Select Committee—the Secretary of State has also set out plans to consult on a new independent statutory body to hold the Government to account for upholding environmental standards. I hope that that addresses concerns that some hon. Members may have not just about the substantive law but about the institutional checks and oversight that we definitely need to make sure we continue when Britain leaves the EU. I hope that addresses the point that hon. Lady made, which was also mentioned by the hon. Member for Brighton, Pavilion.

Turning to amendments 60, 67 and 28, I certainly understand their intention, but they are unnecessary because of the snapshot of all EU environmental principles that we are already taking at exit day under this Bill. Furthermore, the amendments would alter existing EU principles, at least to some extent—for example, in the way that they apply to public authorities. Given that the Bill’s purpose is to bring into effect the law we have currently, the amendments risk generating a measure of uncertainty and a degree of confusion about the legal position. I hope that I have addressed some of the concerns on the environment, and I urge hon. Members to not to press the relevant amendments.

I turn to amendment 93 in the name of the hon. Member for Bristol East (Kerry McCarthy). Many hon. Members have been eloquent in outlining the need to ensure that treaty rights and other provisions falling outside clauses 2 and 3 are still retained in UK domestic law. Clause 4, as I have said, is a broad sweeper provision. It will ensure that as a starting point, all existing rights available in domestic law immediately before exit day as a result of section 2(1) of the European Communities Act 1972 will continue after exit to be recognised and available in our domestic law to the extent that they were before exit day. Clause 4(1) deliberately mirrors the language in the European Communities Act, which for our period of membership of the EU has been used to determine what and how EU law is accurately reflected in UK law. Clause 4 goes no further than section 2(1) of the ECA currently does. It is not intended to capture a narrower set of rights or obligations, or somehow to trim back. It does not make any changes as to how those rights or obligations are enforced in our courts. Deleting clause 4(1)(b) would mean that clause 4 no longer mirrors the ECA.

I understand why the hon. Lady has tabled the amendment, but it would be a rather curious, if not perverse, outcome if what counted as EU law after we depart the Union was expanded to be wider than when we were a member—yet that would be the direct result of her amendment. Perhaps even more importantly, for individuals, businesses, courts and practitioners up and down the country, by changing and inflating the test for what counts as EU law just as we are leaving, the amendment would in practice lead to significant legal confusion after exit with regard to the scope of rights retained. I know that that was not the intention of her amendment, and I hope that she can be persuaded not to press it.

[Mr Grieve]

It may well be that this comes from the European Communities Act, but I still find the word “allowed” very difficult to understand in this context, in view of the plain meaning of subsection (1)(a). As one of the questions that we have perpetually raised is that our own domestic courts will have to sort this tangle out, I am concerned about any form of drafting that appears to have an ambiguity in it. It is very hard to understand what paragraph (b) adds, and my hon. Friend has not actually explained that.

[Dominic Raab]

I have endeavoured to explain that the aim—and, I believe, the fact—of the Bill and the clause is to reflect and replicate the device used in the ECA. I always listen to what my right hon. and learned Friend says, but if that device has worked reasonably tolerably until now, I question why it cannot continue to serve the same purpose on exit. As ever, if he has a better formulation, I am very happy to look at that with him between now and Report to see whether there is a better way of doing this.

Let us be clear about the intention of clause 4. It is a sweeper provision to make sure that we have an accurate snapshot of EU law reflected in UK law on the date of exit.