European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Kerry McCarthy]

Amendment 57, which would leave out clause 4, is linked to new clauses 19 and 21. Many of the amendments I tabled in Committee have been proposed by Greener UK, a coalition of many environmental organisations that are concerned about the possible impact of Brexit on environmental protections. They see it as one of the biggest threats: I know other people see it as an opportunity, especially when it comes to rejigging how we subsidise agriculture once we leave the common agricultural policy. The concern is what protections would remain, given the importance of our membership of the EU for everything from cleaning up water pollution and protecting biodiversity to improving recycling and reducing waste. It is hard to believe that we used to allow untreated sewage to flow into our seas before the EU’s bathing water directive forced the UK Government to make our bathing waters fit for swimming and to test for bacteria such as E. coli. In 1990, only 27% of our bathing waters met minimum mandatory standards; by 2014, 99% complied.

When the then Secretary of State for Environment, Food and Rural Affairs gave evidence to the Environmental Audit Committee’s inquiry on the natural environment after the EU referendum, she told the Committee that approximately a third of the more than 800 pieces of EU environmental legislation will be difficult to transpose into UK law. The Committee also identified a considerable governance gap, which the Government have acknowledged, and I support new clause 18, which would enshrine what the Government have said they want in relation to carrying over environmental principles and establishing a new environmental regulatory body.

My amendment addresses the substantial flaws, gaps and democratic deficit in the Bill that were not addressed in Committee, in particular to fully transpose current EU environmental legislation in all areas effectively into UK law to avoid any weakening or loss of existing environmental protection during Brexit. The Secretary of State for Environment, Food and Rural Affairs has been encouraging in saying that:

“We must not only maintain but enhance environmental standards as we leave the EU. And that means making sure we secure the environmental gains we have made while in the EU even as we use our new independence to aim even higher”.

Opposition Members share the same aspirations and visions, but we cannot just take his word for it. We need those promises written into the Bill and concrete measures to deliver on those aspirations. This has to last longer than he is in post.

Amendment 57 would leave out clause 4, with a view to replacing it with new clause 19 which would preserve—more comprehensively than clause 4—rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from EU law. The new clause seeks only to properly realise the Government’s stated ambition for the Bill—they have repeatedly assured us of this during the process—that the same rules and laws will apply after we leave the EU as before.

In their White Paper, the Government sought to reassure us that this Bill will mean that

“the whole body of existing EU environmental law continues to have effect in UK law”.

The Prime Minister has promised:

“The same rules and laws will apply on the day after exit as on the day before”,

but that is simply not the case. As drafted, the Bill will not properly capture and convert all EU environmental law into stand-alone domestic law.

Clause 4 appears to deal with full transposition. In Committee, the then Minister of State for Courts and Justice described it as a sweeper provision that

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972.”—[Official Report, 15 November 2017; Vol. 631, c. 498.]

But it fails to do its sweeping properly, because some inexplicable and unnecessary restrictions in clause 4(l)(b) and (2)(b) mean that important aspects of environmental law will be lost. Those exceptions include rights that have not been recognised by a court before exit day. Effectively, the basic rights that everyone accepts but that have not been litigated on are at risk. Those rights have been hardwired into EU law and do not need enforcing, but once we no longer have the safety net of the EU, they could fall.

The Government’s defence of the limitations in these subsections in Committee was far from convincing. The Minister essentially argued that they were necessary because directives do not produce directly effective rights until they have been recognised as such by courts. However, if a provision in legislation creates directly effective law, it does not need a court to confirm that that is the case. If a piece of legislation creates a legal position, it does not need a judge to verify that that is the case. In fact, the Government have often not transposed certain provisions of directives on the basis that they function adequately directly from the directives without any need to transpose them into national law. That clearly demonstrates that there are parts of directives that currently form part of UK law that will be removed by subsection (2)(b).

Clause 4 does not adequately engage with failures to properly transpose EU law. An obligation should be placed on the Government to remedy incorrect and incomplete transposition. The powers to do so are contained in clause 7(2)(f), but there is a significant difference between a power to do something and a duty to use that power.

To summarise, amendment 57, in getting rid of clause 4 and replacing the linked new clause 19, seeks to rectify those errors. New clause 19 is simpler and more comprehensive than the existing clause 4. It would ensure that rights arising under EU directives are preserved and that a mechanism is in place after exit day to deal with problems arising from the incomplete or incorrect transposition of EU law before exit day.

If clause 4 is not amended, we could lose vital EU law provisions, including requirements to review and report on the adequacy and implementation of laws that are crucial to ensure the law is complied with and up to date. That includes the requirements contained in article 20 of the marine strategy framework directive, article 17 of the habitats directive and article 32 of the air quality directive. Without reported data under the latter, ClientEarth would not have been able to hold the Government to account through the courts on air pollution.

We will also lose obligations on the Government to report and send information to the European Commission, which is then able to aggregate it and use it for considering the appropriateness of laws and their implementation. On day 6 in Committee, I gave an example of how losing reporting requirements under article 10 of the birds directive could, for example, present a barrier to future investment in, and the roll-out of, marine renewable energy and other developments. The Government still have not said whether they intend these reporting requirements to disappear.

Without amendment, we will also see a loss of environmental standards and conditions. Some obligations on member states have not been transposed into UK law, such as article 9 of the water framework directive, which requires water pricing policies to provide adequate incentives for users to use water efficiently, or article 5 of the energy efficiency directive on energy performance requirements for publicly owned buildings. We have been promised a green Brexit, and we are told that leaving the EU will not threaten the health of people or nature, so why is there opposition to amending the Bill to make those promises legally binding?

Let me turn briefly to the other new clause tabled in my name. New clause 21 would ensure oversight of the transfer of functions from EU institutions to domestic institutions. It would do that by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions and to make regulations that ensure that all relevant environmental powers and functions are continued. The register would allow the public to monitor and hold the Government to account on their plans for robust arrangements to be in place on exit day to deliver their ambition for a world-leading environmental justice system. The new clause also reflects strong public concern that the environmental governance gap that would arise on leaving the EU is filled as quickly as possible.

To conclude, I am simply saying that if the Government want the Bill to match their stated intentions, they need to accept these provisions.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to follow the hon. Member for Bristol East (Kerry McCarthy) in respect of her provisions and to have the opportunity this afternoon to talk about the schedule of amendments in front of us, which we have to consider as a block between now and 4 pm.

The hon. Lady’s concern is about the fate of environmental law, as provided to us by the EU, once we leave, and about what provision we will make to provide it with adequate protection. However, the whole list of amendments, including those tabled by the official Opposition, goes to the issue of what happens to areas of entrenched law that have developed during our EU membership after we have gone. My right hon. and hon. Friends on the Treasury Bench keep on repeating insistently that it is not the intention, as a result of our removal from the EU, that any of these protections should be diminished in any way at all.

It is true that one or two of my right hon. and hon. Friends have made hinting noises at various times that there are areas that they might like to alter in future, in a way that suggests a possible diminution, but in fairness to the Government, that has never been the Government’s position. Indeed, as we have spent time looking at issues such as equality law or children’s rights, the message has come back over and again that the disappearance of the charter of fundamental rights or environmental law issues, for example, will not be used as an excuse for diminishing the existing legal framework.

The difficulty—it is the one that exercised me in Committee—is that it is all very well Ministers coming to the House and making very pleasant statements that that is what they intend to do, but it must be the responsibility of this House to ask the Government how, in practice, that is to be done, when such a powerful mechanism as our EU membership is about to be removed.

That raises a second and more fundamental problem, where I have considerable sympathy with the Government. I understand why, for many in this House—I think that I count myself as one of them, as a good Conservative—the idea of entrenched rights that override the sovereign power of Parliament is something with which we are not comfortable. Indeed, the official Opposition, when in government post-1997 and when seeking to enact the Human Rights Act 1998, recognised that, in that they did not seek to provide entrenched laws; they sought to provide a mechanism through the Human Rights Act whereby rights under the European convention on human rights might be protected in a special way through declarations of incompatibility. That was not sufficient to override primary legislation of this House, but, of course, it did provide a mechanism by which it could be overridden and struck down in the case of secondary legislation. That has always been a way of doing things that has commended itself to me.

I have always accepted that one of the consequences and problems of EU membership is that it has provided entrenched laws that ultimately override by virtue of our international obligations and the direct effect of the European Court of Justice. So I can understand that there should be reluctance on the Government side of the House, as we leave the EU, to simply take this category of laws and say that we are going to give it a special status that overrides the ordinary way in which this House does its business.

If we do that, however, it raises the question of what the Government propose to do to provide, for example, at least as much protection for these categories of rights as is currently enjoyed under the Human Rights Act. One possibility—we canvassed it in Committee—was that the Government might wish to enact primary legislation to add clauses to the Human Rights Act to provide such a mechanism. Indeed, if the Government were to come up with such a proposal, I would be enthusiastic about it, and it is a matter to which we have to give careful consideration.

I am also aware that some of the rights provided in the charter, for example, clearly pertain to EU citizenship, so they are irrelevant to this country once we leave. I also accept that some of the rights may be said to have a socioeconomic aspect, which makes it debatable whether they should be categorised as rights at all. However, that still leaves a very big area indeed of matters that, as I understand it from listening to my right hon. and hon. Friends on the Treasury Bench, Ministers acknowledge are of such importance that they are now seen as being equivalent to rights, yet they do not enjoy the protection of the convention.

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[John Redwood (Wokingham) (Con)]

Does my right hon. and learned Friend agree that the best guarantee of the fundamental rights of the British people is the will of the British people as expressed through the Parliaments they elect? That is the system I thought we all believed in. I know of no threats to these important rights coming from this Parliament. There are not people proposing that they are watered down, and there would be no majority to do so. The guarantee to the British people is that their Parliament will look after their rights.

[Mr Grieve]

May I gently say to my right hon. Friend that if his analysis were accurate, no statute would ever have been enacted by Parliament, at any stage in its history, providing additional protections to people’s rights over and above the common law? That must be the end point, because the whole point about the Human Rights Act was that it added to protections enjoyed under the common law and did so in a way that was compatible with this House’s sovereignty. All I am saying to Ministers is that given that, for 40 years-plus, we have been involved in an international organisation that in practice has entrenched certain rights, it must now be for Ministers to come forward with a sensible proposal as to how those rights, in so far as the Government consider that they are in fact rights, will be protected in the future.

I am afraid that I disagree with my right hon. Friend the Member for Wokingham (John Redwood). Nice as it is to rely upon the Executive’s good will, 21 years in this House—heaven knows, my right hon. Friend has been here far longer—persuades me that that good will is not something that we should always rely on. I am afraid that I have seen a number of instances—particularly when I was in opposition, I might add—where it did not seem very wise to do so.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I agree with my right hon. Friend the Member for Wokingham (John Redwood) that in the end, because we are a sovereign Parliament, we are the only guarantor of our people’s rights. However, I am interested in what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is saying about this matter, because the other danger that is lurking here is the fact that our courts may well decide that they have an obligation to maintain EU law even in the face of an Act of Parliament, and might strike down an Act of Parliament because, from reading the Bill, they see it as their obligation to retain certain principles of EU law. I like the declaration of incompatibility that my right hon. and learned Friend is suggesting as a very suitable compromise that enshrines what we have.

[Mr Speaker]

Order. This, if I may say so to the hon. Gentleman, is a mini-speech, with more emphasis on the speech than on the mini.

[Mr Grieve]

Thank you, Mr Speaker.

My hon. Friend makes a perfectly good point, which reinforces my impression that it is inadequate simply to say, “Because we are leaving we shall leave this to a later date.” I will return to that later.

We did actually, Mr Speaker, talk about this at some length in Committee. In Committee, as hon. Members may recall, I emphasised that one way out of this difficulty might be to move away from the charter and look at the general principles of EU law. We could allow them to continue to be invoked, in respect of retained EU law, which would include issues such as the laws which we have under the charter, until they were replaced. That seemed to me to be a stopgap. I emphasise that I put it forward as a stopgap—not as a long-term solution, but as a way of getting the Government off the hook of having to accept any part of the charter, because I know that one or two of my hon. Friends choke when they even mention that word. I have never shared that view—I think they should actually go and read the charter, because then they would realise it is rather a reasonable document. My suggestion provided a way forward, and my hon. and learned Friend the Solicitor General very kindly said that he would go away and give the matter some thought, the consequence of which was Government amendments 37 and 38.

I am sorry to start this Report stage with a bit of carping, because later I shall say some very nice things about the response of my hon. Friends on the Treasury Bench to some of the representations that I made to them in Committee. Some very good things indeed have been done, for which I am grateful—I will talk about those when we come to the right point—but I think that the response on this matter is, frankly, rather paltry. They have provided a mechanism by which for three months—the period in which it is possible to carry out judicial review—after the exit date it will be possible to invoke these rights, but not in a way that challenges any primary legislation. It is a minuscule change, but minuscule though it may be, it is actually a little wedge in the door, because it represents quite a major surrender or change of principle on the part of the Government towards this issue, and to that extent I am delighted to welcome it. Nevertheless, as I think the Solicitor General knows very well, the proposal is not what I was asking for. The problem is that although it starts to remedy the situation, it does not go anything like far enough, particularly when it is not linked to a wider statement from the Government about how they want to go ahead and deal with this.

I had to make a decision about whether to table a further amendment to put to the House on Report. Having rebelled—there is no other way to describe it— against the Government, because that was what I undoubtedly did on clause 9, and indeed incited some of my colleagues to join me in doing so, because I thought that clause 9 was so deficient, it is not my desire to cause further stir, in the harmonious atmosphere of early January, by doing that again if I can possibly avoid it. It crossed my mind that two things appeared to me to militate against doing it. The first is this.

I have to say to the Solicitor General that I do not think that the Bill will pass through the upper House without this issue being considered. It has nothing whatsoever to do with whether Brexit takes place; it has to do with the state of certainty of law in this country, which is a matter to which plenty in the other place are capable of applying their minds. I very much hope that when the Bill goes to the Lords, they will look at the amendment that the Government have tabled and understand its spirit—it is well-intentioned, so I must welcome it—but perhaps decide that it might be capable of a little bit of development. Or, indeed, they may apply their legal minds to this matter and come up with an alternative that does respect—I want to emphasise this—some of the reasons, which I understand, why the Government do not wish to entrench these laws after we have gone.

[Stephen Kinnock (Aberavon) (Lab)]

The right hon. and learned Gentleman is making a point that gets to the heart of the purpose of the Bill, as stated by the Government: this is a technical transfer exercise—it is technically transferring the acquis communautaire into British law to facilitate Brexit. Does not the decision not to transpose the charter of fundamental rights make a mockery of that claim? Although the right hon. and learned Gentleman is making very valid points about some of the technical alternatives, do we not need to keep returning the Government to their stated fundamental purpose in the Bill?

[Mr Grieve]

The hon. Gentleman makes a totally legitimate point, especially as the Government themselves have emphasised how important these issues are to them. We are not turning the clock back to the 1950s—at least, I do not think we are—since when this country has moved on in respect of rights. The challenge to Ministers is that they have to come up with some solution to the problem. As I said, I do not want to put spanners in the works of how they do it.

Another factor influenced my decision not to table another amendment and divide the House on this matter. Realistically, although I realise that some may not like this, in leaving the European Union, we are about to embark on a lengthy period of transitional arrangements during which, in my view—I might be wrong—every jot and tittle of EU law will continue to apply to this country in every conceivable respect, except that we will no longer share in its making in the institutions of the European Union. I am afraid that I think that is where we are going; the alternative, of course, is that we are jumping off the cliff.

If that is where we are going, I accept that there is a little more time for the Government to start to reflect on how they will deal with issues of entrenched law before anybody’s remedy disappears. That is something else that influences me in not wishing to divide my own party or the House. I am always aware that quiet persuasion may be better than speeches from the Back Benches, and for those reasons, a bit more quiet persuasion might get us to where we need to be on this issue, but it will not go away.

[Mrs Anne Main (St Albans) (Con)]

My right hon. and learned Friend says that he does not wish to divide the House. However, if he had tabled an amendment and divided the House, and then that vote had been lost, it would have sent a powerful message to their lordships not to mess with the Bill and that the will of the House had been firmly expressed. There would have been an advantage in his position, if he had maintained it.

[Mr Grieve]

There might have been, but as a loyal member of the Conservative party over many years, I have always been of the opinion that the best way to try to influence one’s party’s policy is in the quietest way possible. As this issue has the merit of being able to succeed in that way, I shall stick to my strategy. Of course, if and when I think it necessary for me to do something else, I could, very reluctantly, be forced to do so. On this matter, however, I prefer to leave it.

I turn to a related matter about which I did table an amendment, which I do not wish to press to a vote. It goes to the other issues about the certainty of retained EU law. There is an inevitable internal incoherence about how retained EU law is being handled in the Bill. In reality, retained EU law has a primary quality, because in all likelihood most of it is supreme over our own laws. Oddly enough, that situation is going, at least in part, to be retained, but the Government have dealt with that by allowing it all to be altered through statutory instruments.

In Committee, we tried to find a way out—I tried quite hard. That is why I have tabled new clause 13, which provides a way of identifying what EU legislation is in reality primary and what is secondary. I thought that the House might be interested—if it is not, the other place might be—in how one might go about making that separation, which would then provide a sensible measure of greater certainty. At the moment, the Government’s proposal, as I understand it, is that each measure will be dealt with on a case-by-case basis. That seems a rather extraordinary way in which to proceed.

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[Mr Grieve]

I am certainly not going to make a mini-speech; I said what I felt was sufficient. I offer the new clause not as a perfect solution, but as an alternative to what I consider to be the rather incoherent approach that the Government have adopted. The new clause seemed to me to have some merit, especially because it includes a provision allowing the status of retained EU law to be altered by statutory instrument, so the House could be done with the process quite quickly. I thought that it was a way of trying to resolve what I saw as a practical problem. Let me emphasise that it was not intended to be a weapon with which to beat Ministers on the head. I saw it merely as a sensible way of trying to take things forward, and I present it to the Committee in that spirit. It is not perfect, but represents another way in which we might approach the issue.

[Mr Leslie]

This may seem a dry and technical question, but from time to time Parliament does reflect on the nature of legislation that has been passed. We all assume that it has been accrued through Acts of Parliament or through secondary legislation, but we are now importing a third category, that of retained EU law, into our legal context, and we need to know how to treat it in the future. I do not think that the Government have addressed that question adequately, which is why I think that new clause 13 is of particular interest.

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Lord Neuberger, the former President of the UK Supreme Court, has raised this issue on a number of occasions, including in interviews with the BBC and in evidence to Committees of the other place.

[Mr Grieve]

I agree entirely with what the hon. and learned Lady is saying, but it is my understanding, and I hope the Minister will say it again—he said it in Committee—that this will be dealt with in the other place. I am sorry that it could not be dealt with here, because that would have been rather better, but if the Government need more time, I expect them to address this issue.

[Joanna Cherry]

That is what I have heard, too. What I would like to hear from the Government today—this is why I tabled this probing amendment—is some indication that they recognise the gravity of the issue. This is not a political football, and it is not about stopping Brexit; it is about addressing issues of legal certainty.

As a courtesy to this House, I would like to hear some indication of how the Government propose to address the issues of legal certainty, particularly so that Members of my party, which is not represented in the other place, can have some input and give our view. Of course Scotland has a separate legal system. Clause 6(2) will apply to the High Court of Justiciary, and we need to be reassured not just on behalf of judges in the UK Supreme Court but on behalf of judges in the Supreme Courts of Scotland. I very much hope amendments 42 and 43 will draw from the Solicitor General some colourable reassurance that the Government are taking these concerns seriously and that they have them in hand, as well as some indication of the route the Government intend to go down in the other place to address these concerns.

Finally, on the charter of fundamental rights, I will wait to see what the official Opposition do, as we each have an amendment down. Given the spirit in which we have worked together on other aspects of this Bill, I am sure we can come to an agreement on that. The Scottish National party will be happy to support new clause 7, which was tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). Many of our constituents feel strongly about the issue it raises, as do those of other MPs, and we are grateful to her for persevering with it.

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[The Solicitor General]

I will not; I am developing my argument. It was a point that was made clear, not only in the charter itself but in protocol 30, which was signed by Poland and the UK at the time of the Lisbon treaty. In addition—this is important, and this, it seems to me, having listened carefully to the debate, is not understood—the charter does not apply to member states in everything they do. Although it applies to the EU and its institutions in all areas, it binds member states only in so far as they are acting within the scope of EU law. Therefore talking about the charter in a domestic context misunderstands its purpose and point: it was not drafted in that context. I am afraid that there has, I think, been a regrettable misunderstanding about that in this debate.

[Mr Grieve]

I do not think I have been under any misunderstanding at all. That is why I have kept pressing the Government to leave the charter to one side but look at the general principles of EU law necessary to bring challenges to retained EU law, brought into our own domestic law, that was not enacted by this Parliament—and without which, frankly, the coherence of EU law starts to disintegrate. That is the issue. Linked to that, of course, is the other issue of protecting some of those fundamental rights, perhaps in a different way, that matter to so many on both sides of the House.

[The Solicitor General]

My right hon. and learned Friend and I agree about general principles, which is why the general principles that underpin the recently drafted charter remain and, of course, do apply in respect of retained EU law. His second point about the means by which individuals challenge that is, of course, a matter of ongoing debate. I shall come back to the points raised in not only his amendment, but mine as well.

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[The Solicitor General]

The hon. and learned Lady seems to be very focused on future referendums and the desire to rerun arguments that were held some time ago. I want to do justice to her amendments as much as to anybody else’s, and I will say this about the amendments posited by her and the Labour party: they offer different visions of how challenge might be mounted by using the charter. Amendment 4, which stands in the name of the Leader of the Opposition, deals with a situation akin to that under the Human Rights Act, whereby a declaration of incompatibility can be given, but that does not guarantee full redress for individuals seeking it under the charter. I accept that the amendment in the name of the hon. and learned Lady goes further and would retain a power in effect to strike down legislation if it is incompatible with the charter. I simply say to both of them, with the greatest of respect, that their approaches work against the core aims of the Bill. We are leaving the EU, and there has to be certainty about the process; and certainty in the law lies at the heart of everything else we have to do. That is the simple reason why we cannot accept those amendments.

I was interested in the arguments of the hon. Member for Bristol East (Kerry McCarthy) about clause 4, when she moved her amendment 57 and spoke to her new clause 19. My argument about clause 4 is simply this: indeed, as the sweeper clause—the description she adopted—it has the important function of curing any loopholes that might exist in European law when we leave the EU and deals with the question of uncertainty that I know she is extremely concerned with. I will try to reassure her. She will remember that the explanatory notes contain a helpful and non-exhaustive list of the type of directly effective rights, such as equal pay—a very important right—that are designed to be covered by this important provision in clause 4. As I have said in evidence in another place, we are simply seeking to ensure the important principle of reciprocity in the enforcement of fundamental rights such as those of equality, which she referred to, and those pertaining to the environment, for which I know she also has a great passion.

In conjunction, I can deal with the hon. Member for Enfield, Southgate (Bambos Charalambous), who succinctly and clearly made his argument on new clause 16, which deals fairly and squarely with equalities. We have already made our commitment clear that all the protections in and under the Equality Acts of 2006 and 2010 and the equivalent Northern Ireland legislation will continue to apply once we have left the EU. In Committee, we tabled an amendment which would secure transparency in that regard by requiring ministerial statements to be made about any amendments made to the Equality Act through secondary legislative powers under the Bill.

What concerns me about new clause 16 is that it would go further by creating new free-standing rights, perhaps even more than have been proposed in amendments relating to the charter. That is not the purpose of the Bill. The Bill is about maintaining the same levels of protection on the day after exit as on the day before. It is not a vehicle for substantive legislative changes such as those that have been proposed, and for that reason we cannot accept the new clause.

I am grateful to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) for his qualified welcome for the Government amendments. The reason for a three-month time limit analogous to that which exists in domestic judicial review is the important policy consideration that there must be a degree of certainty when it comes to ongoing litigation and dispute about EU law as we enter the post-exit era. I think there must be some resolution of that by way of a limitation period. Retaining an open-ended right of action would create more uncertainty for businesses and individuals about rights and obligations.

After we cease to be a member of the European Union, it would not be right to allow “general principles” challenges to Acts of Parliament to continue, because that is not in line with the purposes of Brexit. To put it simply, outside the context of EU law, the ability of courts to disapply Acts of Parliament on “general principles” grounds is not consistent with the way in which our domestic legal system functions. That must be at the heart of our policy considerations.

[Mr Grieve]

My hon. and learned Friend’s argument would make more sense if the Government had not decided to retain the principle of the supremacy of EU law in the Bill. Once they have done that, removing the mechanism of a challenge on the basis of general principles creates something that I think is rather odd. I would not have pressed the issue if the Government had adopted an alternative approach, but that was their own decision. This has, I think, highlighted some of the oddities of the way in which the matter has been approached. It may well be that they can be sorted out in the other place, but I think my hon. and learned Friend must acknowledge that they are odd.

[The Solicitor General]

I hope that my right hon. and learned Friend is allowing me to intervene on his intervention. Let us not forget that we are dealing with the pre-exit situation. The EU acquis is being frozen, in the sense that its full effect in a pre-exit sense must be maintained so that we can maintain certainty. I agree that it is a strange and rather unusual concept, but I think it preserves that all-important certainty.

Time is short, and I want to ensure that I deal with further amendments.

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[Mr Grieve]

It is a pleasure to follow the hon. Member for Cardiff North (Anna McMorrin). I want to raise two points, and the first of them goes to the issue around devolution and clause 11 and the lack of Government amendments. I do not share the hon. Lady’s somewhat apocalyptic view on this issue, but I certainly acknowledge that it is not desirable, because it is clearly not the Government’s intention for the process of Brexit to result in a diminution of devolved authority either in Scotland or Wales, or for that matter, in so far as Northern Ireland is going to get a viable Administration, in Northern Ireland. My view has always been, on looking at and reading the way the Bill was drafted, that we can do better than what appears in it at present. My understanding is that that is also acknowledged by the Government, although I do slightly regret that the Bill was introduced in its current form, because it seems to me that it was, to an extent, unnecessarily provocative.

However, it is worth bearing it in mind that ultimately the devolution system—I participated in the debates that set it up—had behind it the implication that the adjustments were not just a one-way ratchet, and I want to emphasise that point: the implication was that devolution might at times require adjustments that gave powers back to Westminster, just as they conferred more powers over time to both Cardiff and Edinburgh. That was clear in the course of those debates when Parliament set the original system up, and it has been repeated on a number of occasions since.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

Does the right hon. and learned Gentleman agree with his colleague in the Scottish Conservative party Adam Tomkins MSP, the constitution spokesman, who said:

“Brexit must be delivered in a way that respects devolution…Looking at the substance of the 111 powers, many can safely be devolved without further ado; why aviation noise, for example, would need to come under a UK-wide framework I do not know”?

[Mr Grieve]

Yes, 110%; I agree entirely with those sentiments, and the remark I made earlier about it not being a one-way street in the way it is supposed to operate does not in any way detract from what Adam Tomkins had to say, and for that reason I continue to look to my right hon. and hon. Friends on the Treasury Bench to sort this out, and I share the regret that what should have been done in this House is clearly going to come back for consideration in this House at ping-pong. That is not very satisfactory, and I gently make the point at this stage, as I am confident that there will be the necessary amendments in the Lords, that when the Bill comes back from the Lords there must be sufficient time for us to consider it in detail, because ping-pong often has remarkably little time for detailed consideration of measures. I hope very much that we can get an assurance that, in view of the important constitutional nature of this legislation, we should get that.

I said earlier that I had been rather disappointed by the Government response to a matter I raised in Committee and that we debated earlier this afternoon, but that having been said, we debated the extraordinarily broad nature of the powers conferred on the Executive in respect of clause 7 and I am pleased at the way the Government have responded to the representations I made and the amendments I tabled. In amendment 14, it is rather nice to see the Government echoing the very words that I drafted when this matter was in Committee. I have no doubt that, as drafted, the Government amendments produce a significant safeguard on the way in which the powers can be used. They do that in two ways: first, by introducing an ejusdem generis clause, which refers to something of the same nature. In referring to the deficiencies listed, they state that if there are any others, they must be of the same nature as those in the list. The second protection that is now being provided is that, if the Government wish to add to the list of deficiencies, they are going to have to do it by an affirmative resolution of this House.

I entirely accept that this does not go as far as what I was seeking to achieve when I tabled my original amendments, which was to tie the Government down rather more. However, the Government certainly made a perfectly reasonable case in the discussions that I had with them. I think that that might exhibit a certain amount of neurosis on their part—neurosis is very common, as I know from my time in government—that they might have missed something that they ought to have put into the list. The fact that they are willing to come to the House and get an affirmative order to do this provides me with considerable reassurance that this power will now be used in the manner in which it was intended.

Having said all those good things, it is worth pointing out that this and many of the other power grabs in the Bill are quite startling in their scope. It is, however, to the Government’s credit that they have been willing to listen on this. Their amendments amount to a considerable improvement, particularly when associated with the other safeguards that we have been offered in respect of triage and scrutiny. I should therefore like to express my gratitude to the Secretary of State and to the Bill team, who have suffered my presence on probably more occasions than they might have wished in discussing how this might be taken forward. This is exactly what I came into this House to do, and it is always rather nice to be able to achieve something—and, furthermore, to achieve it without having to divide the House, as that is always the weapon of last resort for the Government Back Bencher.

With that, I come back to the point at which I started. The test of this legislation will be whether, after enactment, it is seen to be working fairly when it comes into operation. I have no idea when it will come into operation. I suspect that that is still a very long time off, but that is a product of the folly of the course of action on which we are embarked. All that we can do is to try to moderate it as much as possible.

[Stephen Doughty]

I should like to speak to amendment 5, a cross-party amendment tabled in my name and those of other hon. Members. I should also like to indicate my strong support for the Opposition Front-Bench amendment 3. In principle, I also support many of the other amendments in this group, although not, I am sorry to say, the Government amendments, which do not go far enough towards addressing the concerns that have legitimately been raised by the devolved Administrations in particular. It is always a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who has made some excellent points, as has my colleague and friend, my hon. Friend the Member for Cardiff North (Anna McMorrin), who shares many of my deep concerns about this part of the legislation, which have not been addressed.

I hesitate to raise this point, but it is odd that we are discussing devolution and Brexit in this, the most important piece of legislation to face the United Kingdom and the devolved nations since the second world war, without the Secretaries of State for Scotland, Wales and Northern Ireland being present in the Chamber with us. I cannot see any of their junior Ministers here either. Perhaps they all have other important business to undertake. That seems rather remiss of them, given that we are considering such serious matters. I raised a point of order with you about this the other day, Mr Speaker, as did other Members. Much of the concern about this part of the Bill relates to promises and assurances that were given by the Secretary of State for Scotland, yet he is not here to account for himself. I have a great deal of respect for him, but these are serious issues that have been raised in good faith, and Ministers should be here to hear our concerns, and those of the devolved Administrations, if we are truly supposed to be bringing the United Kingdom closer together—as the Prime Minister claims to want to do—rather than pushing it apart.