European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[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.

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[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.

[Anna Soubry (Broxtowe) (Con)]

During last Wednesday’s debate, I specifically asked whether the Bill was first drafted before the June general election. My view—I do not know whether my right hon. and learned Friend shares it—is that this Bill was all about delivering a quick and hard Brexit, and the reason for these extraordinary powers is that they were needed by Ministers to execute that process in quite a short period of time. Does he think that there is any merit in that?

[Mr Grieve]

I think I might be a little kinder to my hon. Friends on the Treasury Bench, because it seems to me that at the time the Bill came into being, the Government still thought that it was all that was required to take us out of the EU. I think that that is where its genesis and origin lie. In actual fact, one of the supreme ironies is that for all the heat that has been generated—we have carried out some proper scrutiny as well, but certainly, last Wednesday, there was a lot of heat—much of what we are doing here might well turn out in practice to be completely academic. In fairness to the Government, once they were landed with this immense problem, I am not sure that they were wrong to proceed in this way, but it just so happens that that is where we are going to end up. However, that is not a reason why we should not pay attention to the powers that the Government are seeking to take—we do have to pay attention to them.

[John Redwood]

rose—

[Mr Grieve]

I will give way to my right hon. Friend in just a second, because I do not wish to speak for very much longer.

For that reason, I do hope that a bit of focus can placed on schedule 5. I do not have any amendments tabled. I am not about to create difficulties for the Government or to divide the House on schedule 5, but I will, if I may, just ask a question as we approach Report, because I cannot believe that this will not be looked at in the House of Lords. It would be quite nice for the Christmas period to be used for quiet reflection on just how wide these powers are and whether, yet again, the Government might, on reflection, be able to circumscribe them a little bit, so that they appear to be slightly less stark in terms of the power grab that they imply. That is quite apart from the fact, to come back to my first point, that the exception in paragraph 2 giving Ministers the power not to print strikes me as very, very odd.

[John Redwood]

Does my right hon. and learned Friend agree that the Henry VIII powers, as he calls them, in the Bill are much more modest than the Henry VIII powers in the European Communities Act 1972 that it replaces? This is about only transferring existing law into UK law. Where and when we wish to amend, improve or repeal, that will require a full parliamentary process, which it did not need when it came from Europe.

[Mr Grieve]

I understand my right hon. Friend’s point. Of course, I am mindful of it—it has been raised on numerous occasions during the passage of the Bill—but the system that we had to follow as a result of our EU membership implied that that law, having been agreed by the Council of Ministers and translated into directives, had direct effect in this country and was then applied, not usually through primary legislation but by means of secondary legislation, or indeed directly sometimes. I understand all that, but it does not provide a justification for taking unnecessary powers in trying to effect our departure.

As I said, there is something a bit odd about schedule 5. There must be legal certainty, so why are the Government taking for themselves a power to create legal uncertainty if they so wish? Let us be clear about this: if guidance is a matter of Executive discretion, it is a very unusual state of affairs indeed. There is guidance and guidance. There may be general guidance that Parliament might give as to how it intends retained EU law to be treated. I do not have difficulty with that. Indeed, I think that it may be something that we will have to do. As we have discussed—my right hon. Friend the Member for West Dorset and I were in agreement about this—we think that Parliament might want to explain how it wishes this matter to be approached generally. That, if I may say, is a rather different thing from saying that Ministers can suddenly wake up one morning and decide, “I want the law to be interpreted in a different way on some specific matter, and I am going to lay a statutory instrument before Parliament that will enable me to do that.” It is a very unusual thing to do, and the Government must be in a position to justify it. It slightly troubles me that the law can be tinkered around with in this form. Obviously, Parliament can decide what it likes about changing law. Occasionally, we change laws by statutory instrument, through regulatory change, but it is not something that we should do lightly.

[Mr Jenkin]

Clause 13 is confined to the publication and rules of evidence. The schedule itself is about publishing what is retained direct EU legislation. Can my right hon. and learned Friend describe to me what latitude the Government would have that could do so much damage, or be so capricious, within the powers of the Bill, and can he give an example of what would be so damaging and outrageous?

[Mr Grieve]

As I have explained, this is a Henry VIII power, so within the period in which this power is operational—this is on my reading, but perhaps my hon. Friends on the Treasury Bench will correct me—a Minister of the Crown may, by regulation, essentially change the way in which retained EU law is handled by requiring

“judicial notice to be taken of a relevant matter, or…provide for the admissibility in any legal proceedings of specified evidence of…a relevant matter”.

That is a very extensive power. Effectively, it gives a power to rewrite how legislation should be interpreted.

[Mr Jenkin]

Give us an example.

[Mr Grieve]

The examples could be endless—[Interruption.] Well, if there is an established rule by which, for example, EU law is currently being applied, a Minister could say that, in future, that should be disapplied because notice should not be taken of its previous application.

[Wera Hobhouse (Bath) (LD)]

Does the right hon. and learned Gentleman agree that it is not correct to compare the direct application of EU law with Henry VIII powers? When EU law is made, we all sit around the table. EU law is not other people’s law but our law. We sit at the table when EU law is being made, so it is an incorrect comparison.

[Mr Grieve]

I do actually agree with the hon. Lady and, I am afraid, disagree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Of course, membership of the EU implies a pooling of sovereignty, but the decision-making process by which law has been created in the EU is one that is done not by faceless bureaucrats, but by the Council of Ministers. There is absolutely no doubt about that at all—

[Mr Jenkin]

In secret.

[Mr Grieve]

I do not wish to be dragged off into some new polemical argument. My hon. Friend says in secret, but, if I may say, we are signed up to hundreds of treaties other than that with the EU in which we pool our sovereignty to come to common positions with our fellow treaty makers.

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[Mr Duncan Smith]

rose—

[Mr Grieve]

I think that I am about to take up much more time than I wanted to. I give way to the hon. Member for North Down (Lady Hermon).

[Lady Hermon]

I am extremely grateful to the right hon. and learned Gentleman for allowing me to intervene. I agree entirely with his eloquent points about the power that schedule 5 transfers to Ministers of the Crown. Will he spend a moment reflecting on the definition of a Minister of the Crown that is set out in clause 14? The definition comprises not just Ministers, but

“also includes the Commissioners for Her Majesty’s Revenue and Customs”.

The power in schedule 5 is being given to a very broad range of individuals.

[Mr Grieve]

The hon. Lady is right. [Interruption.] Next to me, from a sedentary position, my hon. Friend the Member for Harwich and North Essex is saying, “It’ll only be used for technical matters.” Indeed—let us be clear about this—I strongly suspect that that is the intention, but this is a very extensive power and, as it is worded, it goes way beyond technical amendments. As we are in Committee, it seems perfectly proper for me, as a Back-Bench Member of Parliament—it does not matter which side of the Chamber I am sitting on—to ask my hon. Friends on the Treasury Bench to explain to the Committee how the power will be used. I gently say to my hon. Friends that the problem with this debate is that the heat that starts to come off very quickly goes into issues of principle about what has been going on over the past 50 years. Could we just gently come back to focus on the issue at hand?

[Mr Duncan Smith]

rose—

[Mr Grieve]

As much as I would like to give way to my right hon. Friend, I am actually now going to sit down.

[Mr Duncan Smith]

Just for a second.

[Mr Grieve]

All right, I will give way.

[Mr Duncan Smith]

I want to take up my right hon. and learned Friend on one small point. After agreeing with the hon. Member for Bath (Wera Hobhouse) and justifying the past 40 years by saying that decisions were agreed by Ministers sitting together to make law, he knocked down his own argument as to why he cannot support what Ministers are doing because, of course, they would use this power as Ministers who have been elected to implement change and make law. My right hon. and learned Friend cannot have it both ways. Either he thinks that the last 40 years were wrong, which is why one defends the idea of change, as he did originally; or he thinks that the last 40 years were fine, in which case there is no attack on this particular aspect of the Bill.

[Mr Grieve]

I am afraid that I disagree totally with my right hon. Friend. In the last 40 years, we decided to pool sovereignty as a matter of national interest and necessity. This is a totally different issue; it is about our domestic law. When it comes to matters of domestic law, this House does not have the necessary constraint, which is the very reason why I have asked these questions. I am quite confident that my hon. Friends on the Treasury Bench will be able to provide some cogent answers to the points I have raised.

[Mike Gapes]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

All right, but this is the last one.

[Mike Gapes]

Is there not also another difference, which is that decisions within the European Union are not just taken by meetings of the Council of Ministers, as there is a co-decision process that involves elected Members of the European Parliament representing all 28 member states?

[Mr Grieve]

The hon. Gentleman is absolutely right. I do not want to get dragged into revisiting the way in which the European Union works. The European Union has many flaws, and there are many issues on which I have seen fit to criticise it during my years in the House—including, sometimes, the way it goes about its business. Having said that, this constant conflation of the two issues when we are carrying out scrutiny of what will be domestic legislation is, in my view, not helpful. We need to focus on what we are doing. If we do, we will come up with the right answers.

[Paul Blomfield (Sheffield Central) (Lab)]

It is a real pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who made a characteristically thoughtful and reasonable contribution. It is always remarkable to see how such thoughtfulness and reasonableness can be so provocative to some Government Members.

I wish to speak to amendments 348 and 349 in my name and the names of my hon. and right hon. Friends. I hope, in doing so, to build on the agreement across the Committee that was evident last Wednesday, when we made the decision that Parliament should have a meaningful vote on the final Brexit deal.

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[Mr Rees-Mogg]

My hon. Friend puts the point beautifully. That is actually the historical and traditional job of Back-Bench Members of Parliament. We should be here to protect the interests of our constituents and the interests of the constitution, and to hold the Government—of whichever party—to account.

That is why I am in such agreement with my right hon. and learned Friend the Member for Beaconsfield about the undesirability of Henry VIII powers. However, I said I would diverge from him at some point. The point on which I diverge from him is the perhaps slightly academic one about where we have started from. I think it is inconsistent to say that Henry VIII powers exercised by the British Government, subject to the normal parliamentary procedures of this House and another place, are worrying, but that the Henry VIII powers used under the European Communities Act 1972 were not.

[Mr Grieve]

My hon. Friend makes a perfectly reasonable point, and there is an argument that this House should not concede Henry VIII powers without very good reason indeed. I suggest that the difference is that the 1972 Act carried the clear implication that this was a necessity in order to meet our international obligations. The question I have asked this afternoon is whether these powers are required to meet some domestic necessity. My hon. Friends on the Front Bench may be able to reassure me that they are, but as the powers are so extensive, it is right that we should question them.

[Mr Rees-Mogg]

It is always right that we should question such powers. That issue was about meeting our international obligations, but we volunteered to take on those international obligations by treaty without allowing the House to have the final say on the regulations that would come in. A political decision was made for the convenience of the then Government to do this in such a way to get that treaty agreed, but that was just as much a power grab from this House as what is currently proposed. Indeed, to my mind, it was a very much greater power grab because of the way in which laws in the European Union are introduced. The key is not co-decision making, which we have heard about—that is marginal, and came in at a later stage—but the fact that the right to present a new law rests with the Commission, which is the least democratic part of the European Union.

One of the glories of this House is that any right hon. or hon. Member may at any point, after the first few weeks of a new Session, go up to the Public Bill Office and seek to bring in a new Bill. The right of initiation of legislation lies with all of us, not just people who win the lottery or have ten-minute rule Bills. It lies not just with the Government; any right hon. or hon. Member has that right. It is such an important part of our ability to represent our constituents and to seek redress of grievance. The highest form of redress of grievance is an Act of Parliament; interestingly, Acts of Parliament emerged at the beginning of the 14th century from the presentation of petitions to this House that Members then turned into Acts. This is at the heart of our democratic system, but it was immediately denied by the basis on which laws are introduced within the European Commission.

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[Joanna Cherry]

I recognise it, because in my former career I appeared regularly in the Supreme Court of the UK and the supreme courts of Scotland. The hon. Gentleman may not recognise my concerns, but if he shares my professional background, he should recognise the concerns of senior members of the serving judiciary and the retired judiciary. These are very real concerns. They are telling us that clause 6(2), as currently drafted, on how they will be directed to interpret retained EU law after exit day, does not give them the clarity they desire and would leave in their provenance issues that are political and economic, and factors that, to use Lord Neuberger’s words, are rather unusual for a judge to have to take into account. This is complicated.

[Mr Grieve]

indicated assent.

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[The Solicitor General]

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

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

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

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[The Solicitor General]

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

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[Sir Oliver Letwin]

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

[Mr Grieve]

I just want to thank my right hon. Friend for having intervened in this matter and found a way to resolve the issue. As my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) just pointed out, the oddity of the original amendment 381 was that it would have imposed a rather serious obstacle if, for any reason, there had been an agreement for the article 50 period to end earlier.

[Sir Oliver Letwin]

That is right. My right hon. and learned Friend and my hon. Friend the Member for North East Somerset have always actually maintained the same point, which is that we need to keep the two sets of law in sync with one another. That is the overriding purpose of the whole Bill: to ensure that UK law matches what is happening in the international law arena and that we then import the whole of EU law into UK law for the starting point of our future.

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As we come to the final stages of these debates in Committee, we have an opportunity to reassert that this House will not be sidelined in the most important negotiations facing this country in our lifetime, not because of some obscure constitutional argument but because we are a representative democracy and it is our job in this place to defend the rights and interests of our constituents. This Parliament will not allow those who want to crash out of the EU at any cost to have their way. We will put people’s jobs and livelihoods first. We will ensure that the values and rights that we have forged in 43 years of EU membership are not discarded as we leave, and we should ensure that we remain close to our friends and partners on the continent that we will continue to share.

[Mr Grieve]

It is a pleasure to participate in this debate, and it was also a pleasure to listen to the hon. Member for Nottingham East (Mr Leslie) opening it. He will not be surprised to hear that I entirely share many of his views about the merits of staying in the customs union, and the lack of advantage of leaving it. However, there is a time and place for everything. The customs union and the merits or otherwise of the single market are all matters that the House will have to debate in due course. In the meantime, we will have to see what the Government come up with in the negotiations, and what they return to the House with at the end of them, but I do not intend to get bogged down in that this afternoon.

[Tom Brake]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

I will give way in a moment.

I made it quite clear on Second Reading that the purpose of the Bill relates to process, not outcome, and I have tried really rigorously to confine my remarks to the process issue, although the extent to which people have kept interpreting my concerns about process as an intention to sabotage our leaving the EU altogether, which I have never at any stage sought to do, is remarkable. I will now give way to the right hon. Gentleman, but I must tell him that I want to get on to the meat of this subject, rather than talking about those other matters.

[Tom Brake]

I understand the right hon. and learned Gentleman’s point about focusing on process rather than outcome, but does he agree that given that Cabinet Ministers are now sitting down to discuss the outcome, it would be helpful for Parliament also to use the opportunities available to us to express our views about what the outcome should be?

[Mr Grieve]

Parliament should certainly be debating these matters. Individual Members will decide whether they want to use the opportunity of this Committee stage for that purpose, but I want to confine myself strictly to the issues in front of us.

[Mr Kenneth Clarke]

My right hon. and learned Friend has been consistent all the way through our consideration of this Bill in agreeing with me on only the subjects of process, rather than substance, but I quite respect his view and always have the highest respect for his legal and political skills. Does he agree that if amendments actually went beyond the Bill, they would have been ruled to be beyond the scope of the Bill? It is entirely a voluntary decision on his part that he refuses to be drawn into the substance of Government policy, or the stance that the Government are taking on the eve of their starting the first serious negotiations on our future after we withdraw. It is a pity that he has made this self-sacrificing concession.

[Mr Grieve]

I thank my right hon. and learned Friend. Yes, it is a self-denying ordinance, but it was taken for what I think is a good reason, and partly because I did not wish to inflame the debate into something more general. However, despite my best endeavours and making speeches of what I thought was studied moderation, I seem to have been singularly unsuccessful, but that is merely a reflection of the fevered atmosphere in which this Committee meets.

I have to accept that I did raise the temperature a bit on amendment 381, because when it was first presented to the Committee, I expressed myself in respect of it in very strong terms indeed. I did so not because I was making some statement that I refused to contemplate the day of exit as being 29 March 2019 at 11 pm, but because I considered that to introduce that date into the Bill as a tablet of stone made absolutely no sense at all for the very reason that I sought to highlight in my intervention on my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). In actual fact, that amendment would make it harder to move the date forward if we had wish to do so at the conclusion of the negotiations, because that would require a statute. I know that statutes can be implemented quite quickly in this House, but that process would nevertheless take significantly longer than the alternative. I could not see why we were losing the sensible flexibility provided by the way in which the Bill was originally drafted.

Underlying all this, there appears to be a sort of neurosis abroad that the magical date might somehow not be reached or, if it were to be reached, might be moved back. I am afraid that I cannot fully understand that neurosis of my right hon. and hon. Friends, but it is there nevertheless. It may give them some comfort to have in the Bill this statement of the obvious. However, it is worth bearing in mind that we are leaving on 29 March 2019 as a result of the article 50 process, unless the time is extended under that process, and we are doing so as a matter of international law even if the European Communities Act 1972 were to survive for some mistaken reason, which would cause legal chaos and put us in a very bad place.

In order to try to reassure my right hon. and hon. Friends and to give out the message that this is a process Bill, I am prepared to go along with things now that my right hon. Friend the Member for West Dorset and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) have so sensibly and creatively come up with a solution that appears to provide what my hon. Friends want and, at the same time, removes what I consider, perhaps in my lawyerly way, to be an undesirable incoherence in the legislation.

[George Freeman (Mid Norfolk) (Con)]

I thank my right hon. and learned Friend for making so eloquently the point about the importance of process as the best defence of our liberties. Will he join me in welcoming the work that assiduous junior Ministers have done for their Secretary of State with my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in agreeing a package of amendments that I am happy to put my name to and vote for tonight, along with amendment 381? As he mentioned tidings of comfort, it seems at this Christmas moment that not since the soldiers met on no man’s land to sing “Silent Night” has peace broken out at such an opportune moment.

[Mr Grieve]

I am filled with my hon. Friend’s Christmas spirit, and very much wish that it may be carried through to the new year, and for many years to come. For that reason, I am prepared to support the Government on amendment 381, on the obvious condition that we have the other amendment, and with the assurance from the Under-Secretary of State for Exiting the European Union, my hon. Friend and neighbour the Member for Wycombe (Mr Baker), that we will get the necessary further change on Report to make the matter subject to the affirmative procedure. I fully understand why we cannot have that today—it is too late. We should have acted earlier if we wanted to get that into the Bill during Committee.

I want to put on record an argument that was made to me against this course of action: what we are doing has an impact on clause 9, as amended by my amendment 7. The intention behind amendment 7, which the House voted for, was always that the powers in the Bill for removal should not be used until after the final statute had been approved. That included the power to fix exit date. As a consequence of the amendments before us, those powers are removed from the ambit of clause 9, and therefore have a stand-alone quality that could mean that they could be invoked by making the date earlier than 29 March—so early that we would not have considered and implemented the statute approving exit. Some have expressed concern to me about that.

I have given the matter careful thought, and while I understand those concerns, they appear unrealistic. It would be extraordinary if we were in such a state of chaos that a Government—I am not sure which Government, or who would be the Ministers in government—decided to take that course of action in breach of our international obligations to our EU partners, because that is what that would involve. In truth, that would still involve getting an affirmative resolution of the House, hence the assurance that we needed from my hon. Friend the Minister, and this House would be most unlikely to give permission for such a chaotic outcome. I wanted to respond to what others, including individuals outside the House, had represented to me, but we should not lose sleep over that aspect of the matter. In truth, my amendment 7 was never aimed at exit day. It was aimed at the other powers that the Government might wish to start using before a withdrawal agreement had been approved.

I had an amendment 6, which was about multiple exit days, but that issue has been resolved, so the amendment can be safely forgotten about. I also had amendment 11, which dealt with whether retained EU law was to be treated as primary or secondary for the purposes of the Human Rights Act 1998. My hon. Friends on the Government Front Bench know very well that that is part and parcel of a wider issue that we have debated on many occasions. I have chucked the ball—delicately, I hope—into their court to see how they respond to some of the many anxieties expressed by Members on both sides of the House about how fundamental rights that are derived from EU law that I think most people now take for granted can be safeguarded properly. I look forward very much to hearing a little more about that on Report.

I want to bring my remarks to a close. I am personally delighted that the problem that I could see coming down the track has been so neatly averted by the intervention of my right hon. Friend the Member for West Dorset and my hon. and learned Friend the Member for Torridge and West Devon.

[Stephen Gethins]

I would like to speak to new clauses 44 and 56, in my colleagues’ names. New clause 56 in the name of my hon. Friend the Member for Glenrothes (Peter Grant) is on an issue raised with the Prime Minister today. Gibraltar voted by 96% to remain in the European Union—an even higher figure than for those who voted remain in Scotland and Northern Ireland. That vote clearly reflected the people of Gibraltar’s concern to protect the rights that they have acquired since joining the EU with the UK in 1973.

Gibraltarians need their border to be kept fluid, so that commerce can thrive and so that residents, workers and tourists can continue to pass through a border that should have only proportionate controls and reasonable checks. It is fair to say that they are not asking for anything from the UK that they have not had to date, and it is right that they should be given a firm, formally enshrined legal guarantee to add confidence for industries and commerce. The right of a person from or established in Gibraltar to provide services into the UK, where that right existed immediately before exit day as a result of the UK and Gibraltar’s common membership of the EU, should continue. There is strong cross-party support and, building on the Prime Minister’s comments earlier, I hope the Minister will touch on it in his summing up.

--- Later in debate ---

[Mr Baker]

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

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

[Mr Grieve]

Will the Minister give way?

[Mr Baker]

I did want to make a serious point.

[Mr Grieve]

This is a serious point.

[Mr Baker]

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

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

[Mr Grieve]

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

[Mr Baker]

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

--- Later in debate ---

[Mr Baker]

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

[Mr Grieve]

indicated assent.

[Mr Baker]

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

--- Later in debate ---

[Mr Baker]

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

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

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

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

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

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

[Mr Grieve]

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

[Mr Baker]

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

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

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

--- Later in debate ---

[Mr Baker]

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

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

[Mr Grieve]

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

[Mr Baker]

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