Legal Advice: Prorogation

Dominic Grieve Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I will say one thing for the Scottish National party and the hon. and learned Member for Edinburgh South West (Joanna Cherry) if I may. Whereas in the hon. Gentleman’s case, no shameless piece of cynical opportunism is left on the floor, the hon. and learned Lady is a lawyer and a Queen’s counsel, and she knows that it is the most puerile and infantile of criticisms to say about a lawyer whose advice has been upheld by courts right the way up to the Supreme Court that somehow or other he should be held culpable for that advice. The fact of the matter is that this advice was sound advice at the time. The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do.

[Mr Dominic Grieve (Beaconsfield) (Ind)]

I am extremely mindful of the difficult task that my right hon. and learned Friend has as Attorney General in providing advice to Government, and I am sorry if his legal advice has been partially leaked, because he is entitled to give advice in private. Without that, he cannot do his work. I would also say that for him to get the law wrong in an area of difficulty is not necessarily something to be held to his discredit, but he may agree with me that one of the issues in this matter was one of not just law but propriety, and the propriety went to the unconstitutional or constitutional nature of the act of Prorogation itself, in view of the motivation of the Government for doing it. In those circumstances, I was struck by the fact that in the leaked document his opinion is referred to as believing it is constitutional, when I had understood from comments he made as far back, I think, as July, when Prorogation was first being mooted in order to achieve a no-deal Brexit on 31 October, that he considered that such an act would be unconstitutional. I wonder therefore whether this is not one issue that he ought to clarify.

[The Attorney General]

I know that my right hon. and learned Friend will understand that it is not right for the Attorney General or any Cabinet Minister to comment on leaks of matters that occurred within Cabinet, be they accurate or inaccurate—it would set a wholly undesirable precedent—but let me say this. It was being mooted some weeks ago that Parliament might be prorogued from the beginning of September or even earlier until 31 October. I say straightaway to him that if that had been the proposition, I could not have stayed in the Cabinet while it was done.

Section 1 of the European Union (Withdrawal) Act 2019

Dominic Grieve Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General]

The ingenuity of the right hon. Gentleman knows no bounds. He is right to ask detailed questions such as that, but we have a solution to all these vexed questions: to agree a deal so that we can get on with leaving.

[Mr Dominic Grieve (Beaconsfield) (Con)]

That goes to the very heart of the issue. I have no objection to supporting this afternoon’s Government motion for extension, but I am mindful that we cannot go on lurching from one cliff-edge crisis to another. Unless the Government are able to craft a deal that commands a majority of this House, we must bear it in mind that 22 May or 30 June are not very far away. That concerns me. I would much prefer an opportunity, if necessary, for a longer and fungible extension, which enables us to make some decisions without the pressure we are under. Finally, with respect to the Bill passed through this House yesterday, I make the point that, like the nuclear deterrent, it works because we do not have to use it.

[The Solicitor General]

My right hon. and learned Friend tempts me on to a path of anticipating what might or might not be the outcome of the summit. I hear his point about the need to avoid regular cliff edges. He will forgive me if I remind him politely but firmly that there is an option for us all to take, which is to agree a way forward and an orderly exit.

United Kingdom’s Withdrawal from the European Union

Dominic Grieve Excerpts

Friday 29th March 2019 Commons Chamber

[The Attorney General]

I understand the right hon. Gentleman’s point. I say straightaway that the answer is that this is the only right we have to an extension. If we move into next week without securing it, we take the chance that among those 27 leaders there will be vetoes.

The right hon. Gentleman asks me about European parliamentary elections. Plainly, the stated position of the European Union is that we would have to organise and stand in those elections if we went beyond 23 May. Some lawyers, of course, disagree with that stated position and say that it would not be necessary, but that is the stated position of the Union. The point, however, is that we have the opportunity here to embrace certainty.

What the right hon. Gentleman’s prescription would have us do is take a chance on the good will of the 27 member states of the European Union granting us another extension. The withdrawal agreement—everyone knows; the right hon. Gentleman knows—is an essential prerequisite for our departure from the European Union. That may be why he does not want to vote for it. The official Labour position is that it does not disagree or object to a clause or article of the withdrawal agreement. The country looking on must judge this. The Opposition do not object; they have not emitted a peep of disagreement with a single clause or article of that agreement, and their position today is that they intend to vote it down. What kind of cynicism is that?

The opportunity now is for us to embrace the certain legal right of an extension to 22 May. That will give us the opportunity to give certainty to the country and allow the process of reconsideration of the political declaration to take place.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to my right hon. and learned Friend for giving way. I entirely agree that, of course, apart from the dates of 12 April and 22 May, any other extension for a longer period would have to be agreed with the other 27 member states, but was it not made quite clear when the Prime Minister was at the last European Union summit that an extension to 22 May was what was described as a “technical” extension for the purpose simply of bringing about what had been agreed fully and completely in this House? If we extend to 22 May without reaching that conclusion now, we run the serious risk that we will not be able to extend further at that date if we have not completed all parts of both the withdrawal agreement and the political declaration, but if we were to go back now and ask for longer, it would be given to us if we wanted to consider other options.

[The Attorney General]

My right hon. and learned Friend is a very distinguished and able lawyer, but I never knew that he had a crystal ball. The fact of the matter is that the European Union has not agreed to grant any longer extension. It will be subject to the veto of any of the 27, and it would certainly be subject to clear signs in the House that there was a stable majority for an alternative solution, and a stable way to deliver it.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

There may be one thing that unites most of us on both sides—the utterly wearying quality of the debate on which we have engaged for so long. As a consequence, when we find ourselves presented with an opportunity that might bring that debate to a conclusion, there is always a temptation to look at it and think that it could be a way out. That is particularly the case, because for many of us, although I accept not all, the sword of Damocles of a no-deal Brexit hangs over us and that sword is a matter of huge anxiety. I happen to believe that it would be catastrophic for this country.

[Sir Christopher Chope (Christchurch) (Con)]

Will my right hon. and learned Friend give way?

[Mr Grieve]

In a moment.

The issue that we have to consider today is whether the offer that the Attorney General and the Government have made to this House goes any way towards resolving the problem. In my view, it cannot and does not. The origin of the problem lies, as has been so rightly said—and here I find myself in agreement with my hon. Friend the Member for Stone (Sir William Cash) and my right hon. Friend the Member for Wokingham (John Redwood)—in the fact that the Government set out on an enterprise and said that at the end of it this House would be able to vote not only on a withdrawal agreement but on a future relationship. Indeed, page 36 of the Conservative party manifesto, which I am sometimes accused of not following, said:

“We believe it is necessary to agree the terms of our future partnership alongside our withdrawal, reaching agreement on both within the two years allowed by Article 50 of the Treaty on European Union.”

The Government’s problems started to multiply when it became clear that that was not happening.

Whatever the motivation of different Members of this House in rejecting the Government’s deal, the truth is that at its kernel was the fact that we did not have any ability to make that assessment. That is why the Government lost twice on section 13 motions, and in truth I suspect that even if a section 13 motion could be brought back, it would again be rejected for the same reason.

Now, the Attorney General and the Government say to us that there is a way out of this, by which we can agree the withdrawal agreement, get a technical extension until 22 May—I will come back to that in a moment—and expect, in the intervening period, to resolve the outstanding issues to the satisfaction of this House.

In the past week this House, in its frustration, finally took control of the Order Paper, because it wanted to debate the alternatives that the Government did not want us to debate. One thing is clear from that debate: the alternatives need time to be agreed, time to be worked up, and time to be negotiated with our EU partners. How can that be done in the context of a technical extension that my right hon. Friend the Prime Minister stated at the Dispatch Box would be there if we reached an agreement merely to implement it?

At an earlier date, I explained to my right hon. Friend the Chief Whip that if this House reached an agreement, I would not, even if I did not like it, seek to use the passage of the withdrawal agreement Act for the purpose of wrecking it. That is a self-denying ordinance on my part. I am afraid, however, that it is perfectly obvious that some of my hon. Friends and other hon. Members intend to use the withdrawal agreement Act to wreck the passage of any agreement. I have to say, speaking personally, that if I cannot vote on a clean motion to approve a deal, I will be constrained on the passage of the EU withdrawal Act to be much freer in my opposition.

The truth is that it is most unlikely that between now and 22 May we have any possibility of reaching that sort of consensus. That is why I have been of the view for some time that we ought to seek to extend article 50 further if we cannot come to an agreement by 12 April, and I believe that our European Union partners have understood that and would be willing for us to do it.

[Mr Charles Walker (Broxbourne) (Con)]

I do not say this with any sense of rancour; I say it out of frustration and concern for this country. It seems to me that the losers do not know how to lose and the winners do not know how to win, and that is why we are at this juncture, which seems almost insurmountable for this House.

[Mr Grieve]

I greatly respect my hon. Friend; indeed, I respect the views of all my hon. Friends and others on this matter. Compromise is a very important part of the political process. Compromise happens when people come together to accept an outcome that they are prepared to endorse and respect, but it is manifestly obvious—I only had to listen to one or two of this morning’s speeches from this side of the House—that that is not what is going to happen. There is no compromise, and that is because there is nothing to compromise on in terms of a future relationship. There is no settled will. I share my hon. Friend’s desire to get this over with, but the siren song being sung to us will just take us further on to the rocks, and in mid-May we will end up scrabbling around with the catastrophe of no-deal Brexit, without any ability to rectify it when currently we are in a position to do so.

Some of my hon. Friends showed great courage in supporting the indicative vote process and, in doing so, essentially rebelling against the Government’s position. I say gently to them that, having had the courage to do that, they are now abandoning it completely for something that cannot progress the debate on how we get out of our current impasse. It just will not happen.

For those reasons, however tempting it might be, and however much the calls of loyalty are made—and heaven knows, I feel them keenly—I am afraid that I cannot vote for something that, in my judgment, is not going to deliver the benefits that are claimed. Furthermore—and here I agree with my right hon. Friend the Member for Wokingham, not for the first and not for the last time—our constituents, whether they voted leave or remain, are being delivered something that is utterly, utterly different. The vote we take today will determine whether we end up in chaos or not.

[Mr Seely]

If we want to avoid chaos, can we not vote for the deal? My right hon. and learned Friend says that he is not willing to compromise and that other people are unwilling to compromise, and he bases his own lack of compromise on other people’s unwillingness to compromise. If he is willing to compromise, he will find that many people in the House are also willing to compromise. That compromise is the withdrawal deal.

[Mr Grieve]

I am always willing to consider compromise, but, as I said before, compromise has to come from a settled intention to respect an outcome. I have to say that there is no such settled intention, certainly among many Members on the Government side of the House. I listened to the speech of my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith). It was quite clear from what he said that his purpose will be to use the passage of the WAB to re-order entirely the future relationship in the way he wants. I do not disagree with that—it is his right—but it highlights why separating the two is plainly, in my judgment, impossible. Yet that is what we are being asked to do.

[Mr Duncan Smith]

I hope that my right hon. and learned Friend is not asserting that it is wrong to want to amend or debate the Bill. But getting to the Bill is of vital importance—there is nothing sinister about that, surely.

--- Later in debate ---

[Mr Grieve]

But the Bill was intended to implement the agreement for the future relationship on which we had voted. It has now been transformed into something entirely different: as I understand it, a free-for-all opportunity—although I suspect that the Government do not really intend that—for MPs to pile in their ideas as to not only the future relationship, but caveats in respect of Brexit which, in my view, are incompatible in many cases with the withdrawal obligations themselves.

We have to be clear about these things, and here I speak as an ex-Law Officer. Of course there will be differences of view in this House, but we have to be honest in our purposes. I do not intend to sell my constituents short, however tempting it might be for party political advantage. In any case, if we ultimately fail the country, we as a party are not worth existing. The national interest in this matter must come first.

[Several hon. Members rose—]

Withdrawal Agreement: Legal Opinion

Dominic Grieve Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

What I hope will not be lost on my hon. and right hon. Friends is why the hon. and learned Lady is insisting and pressing upon them the facts and matters that she has just been drawing to their attention. It could be, I wonder, that there is some ulterior motive in her concern about the absence of a unilateral exit mechanism in all circumstances.

Turning to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect—as anybody of his distinction should be listened to—I take issue with some of his comments. For example—my opinion sets this out and other lawyers are commenting to that effect this morning—the hon. and learned Lady does no justice to the fact that these measures and improvements do facilitate, and mean that there is a reduction of risk in, our being able to prove and demonstrate bad faith or want of best endeavours. She says that we could not terminate, but there is in fact in my opinion a clear pathway to termination.

As the hon. and learned Lady knows, I wrote in my opinion that if in the circumstance that we got a declaration from the arbitral tribunal that there had been a lack of best endeavours, having regard to the accelerated pace of negotiation which this new agreement now imposes, we could then move to suspend our obligations, if we wished to do so, under the protocol. If that suspension was prolonged, we could invoke article 20 to argue that it was no longer necessary because the inaction of the European Union demonstrated that it must think that it was no longer necessary, and that could lead to termination. It is therefore not entirely true to say that there is no way in which the provisions could be terminated. I say to the hon. and learned Lady that suspension, in these circumstances, is as effective as termination, because the only way in which the EU could restore the position would be for it to come back to the negotiating table with genuinely new proposals.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I thank my right hon. and learned Friend for his statement. I have no reason to disagree with his conclusion in paragraph 19 of his opinion, and I commend him for standing up for his office and speaking truth to power. However, I have one query about paragraph 7 of his advice, in which he describes the joint instrument as representing

“materially new legal obligations and commitments”.

He will of course be familiar with article 31, paragraph 2 of the Vienna convention, which says that such an instrument can have legal force and be binding only in the sense that the parties cannot later alter or deny what they have agreed and that it is not a treaty in itself. In those circumstances, is it not the case that the breaching of the best endeavours obligation in itself makes no difference? The only difference is if there is bad faith, and that in fact was contained in the original agreement that we signed.

[The Attorney General]

I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.

European Union (Withdrawal) Act

Dominic Grieve Excerpts

Tuesday 15th January 2019 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

Entertaining as it was to watch the theatricality of my right hon. and learned Friend the Attorney General, I have to say to the House that it filled me with a slight sense of gloom that the Government have got to such a pass that they had to rely on the skills of a criminal defence advocate to get them out of their difficulties.

We have had everything. We had the appeal to patriotism and the bright fields beyond. We had the analogy of the airlock, in which we were assured that if we placed ourselves for a period of time in an uncomfortable position, we would find that the door opened to the fields of ambrosia beyond. I am afraid that my own view is that we will either choke to death in the airlock as a nation or, when the door finally opens, find the landscape little to our liking.

At appropriate moments, we also had those delicious moments of confession and avoidance from the Attorney General. He gently pointed out that he thought the suggestion that we could have a negotiated deal without a transition had been overblown. Who overblew it? The truth is that for two and a half years, and during the period of the referendum, we have been living in a fool’s paradise in relation to expectations. When during the referendum was there mention of the backstop and its constitutional implications that worry so much Members representing Northern Ireland constituencies? Where was the 20-month transition, now potentially extended for two years, and where was the complete lack of concrete terms for a future relationship?

That is the reason why we now have the problem that only about 20% of the public appear to think that this is a good deal, and it should come as no surprise that so few Members of Parliament are also willing to support it. The difficulty—this is where I do agree with what the Attorney General said—is that we are where we are: we cannot turn the clock back. I know that some hon. Members talk of alternatives, and we can consider them, but I have to say that my view about where we are is that alternatives will be very hard to come by. In any case, I raise an anxiety about whether they can be justified.

One of the things I have found most curious in this debate is that I keep on being told that I must sign up to this deal because it would be a betrayal of the United Kingdom electorate not to do so. Yet there are hon. Members who are prepared to consider, for example, going for a Norway-style option. I have to say that that seems to me to be an example of the elites picking up the carpet and brushing the broken glass under it to try to avoid the difficulties that have been created.

That is why I am respectful of what the Prime Minister has tried to achieve. I accept that it is probably the only deal on offer, realistically, and might be willing to support it, if it had the support of the public. Yet we have spent months trying every possible device in this House to prevent Members from expressing any view saying that the public ought to be consulted. On that, I am afraid I will not budge.

It pains me to see how the discourse has developed. It pains me, Mr Speaker, to see you and me accused of being in a sinister conspiracy, all of which is utter and complete fantasy. It pained me to discover the No. 10 press office briefing against me last Friday for involvement in an initiative of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in which I had not the slightest degree of involvement. Such is the level of madness that pervades us at present, and that makes me all the more determined—as the death threats come in and the rhetoric heats up—that we must stay sensible, be willing to have a dialogue across the House and try to resolve this. The question now is whether the Government are prepared to listen. For the present, I very much regret that I cannot support the Government this evening.

Withdrawal Agreement: Legal Position

Dominic Grieve Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I ask the right hon. and learned Lady to accept that I will give this House a stark, uncompromising and completely frank view on any relevant point of law. I suggest that, if I had given advice, there would be no real significance in that advice being disclosed, because this House has the opportunity to ask me directly.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My right hon. and learned Friend is to be commended for his statement and for the document that has been produced, which I have to say from my own experience is rather fuller than any advice he might ever have been called upon to produce. First, it might be helpful to the House if he took this opportunity to confirm that there is nothing in this document that is incompatible with any advice that he gave to the Government? I would not expect him to be in a position to endorse any such document if it were at variance in that way. Secondly, turning away from that first principle to the content, might he also wish to comment on the provisions specific to Northern Ireland in paragraphs 25 to 29, which appear to show quite clearly that under the protocol it would be possible to end up with a situation in which there were in fact checks and controls on good passing between Northern Ireland and the rest of Great Britain?

[The Attorney General]

I am grateful to my right hon. and learned Friend. He will understand that if I were to make that express confirmation, I would by that means be disclosing what advice, if any, I had given. I hope that the House will understand—unless it is to be supposed that I would tailor my advice according to my audience, which I assure the House I would not do—that there is no matter on which hon. Members could ask me a question on which I am likely to have given a different answer to any other party who might have asked me about it in the course of these negotiations. In all candour, therefore, I can say that all the House has to do is ask.

In relation to my right hon. and learned Friend’s second question, it is true that there would be regulatory divergences—as there are within sovereign states throughout the world—between one part of the sovereign territory of the United Kingdom and another, but those divergences could be kept to a minimum. They involve, on my investigation, some 15 forms of product in respect of which checks might have to be carried out at the border. Those 15 forms of product are largely phytosanitary goods in respect of which checks are already carried out in many cases at the ports of Northern Ireland. Therefore, while that border would exist—I find that distasteful myself—the issues are nevertheless mitigable, and the question again is whether that feature should lead us to decline this deal, which I firmly believe is the best way of ensuring that we leave the European Union on 29 March. That is the solemn responsibility that this side of the House—and some on the Opposition side—believed that we had. This is the deal that will ensure that that happens in an orderly way and with legal certainty.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

It is a significant amendment, and it was also a significant amendment in the Lords. Even as amended—taking it back to being closer to the wording of the phase 1 agreement—the amendment is still a very significant measure.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It also goes further than that, does it not? Not only will we have to stay in a form of customs arrangement amounting to a union, but we will also have to have a high level of regulatory alignment. Otherwise, the life that takes place along the border will be impossible because of different regulations on either side.

[Keir Starmer]

I agree, and I will develop that argument, because a customs union alone will not solve the conundrum of how to keep to the solemn commitment to having no hard border in Northern Ireland.

--- Later in debate ---

[Mr Grieve]

The right hon. and learned Gentleman is making a very powerful case. I can tell him that Government Members should also be concerned about this matter. I am sure he agrees that it is perfectly possible to carry out Brexit—without incorporating the charter of fundamental rights, which I know is a subject of difficulty—while at the same time securing these rights through this perfectly sensible amendment.

[Keir Starmer]

I am grateful for that intervention. I would have thought that this is not controversial. The Prime Minister said that she did not want to reduce these rights, and we take her at her word, but if the Government convert them into a form in which they lose their protection, they make them vulnerable. I would have thought that any Government who want to change these rights would have the decency to do that through primary legislation so that this House can carry out the proper scrutiny process. It is very straightforward.

I now turn the charter of fundamental rights. Through the Bill, thousands of EU provisions are being converted into our law—only one is not being converted. All the others can be converted, changed, modified or brought into our law in some shape or form, but the charter apparently cannot be converted, and that is wrong in principle.

--- Later in debate ---

[The Solicitor General]

It is a pleasure to rise in this debate to set out the Government’s stance on these important amendments. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was properly concerned about the effluxion of time. I share that concern; there is a lot to go over, and I will do my very best to cover all the amendments before us and, of course, to take interventions, as I always strive to do.

May I first echo the opening remarks made yesterday by my right hon. Friend the Secretary of State, who talked about the important role of the other place as a revising Chamber? There is no doubt that in some instances the other place has made some constructive improvements to the Bill, which the Government have every reason to support. However, on other matters, which were debated at length and agreed to by this elected House, the other place chose to ignore decisions that were taken here. Instead, we have a set of amendments that, I am afraid, are not properly thought through and would have a negative impact on our plan for a smooth and orderly exit.

We heard from the right hon. and learned Member for Holborn and St Pancras that the Opposition do not accept Lords amendment 51, which seeks to make continued participation in the EEA a negotiating objective for the Government. Well, we are sure about his position, but we are not so sure about that of certain other Opposition Members. However, on this issue, we are certainly in broad agreement.

This country is party to the EEA agreement by virtue of its membership of the EU. After the implementation period ends, that agreement will no longer apply to the UK. Seeking to participate in the EEA agreement beyond that period does not pass our test—that our future partnership with the EU must respect the referendum result. It does not deliver the control over our laws, and indeed other aspects of our domestic policy, that we seek. On borders, it would mean that we would have to continue to accept all four freedoms of the single market, including the free movement of people.

[Mr Grieve]

May I just pick my hon. and learned Friend up on his point about law? We are signed up to thousands of treaties in international law that bind us, and including on international tribunals. Membership of the EEA does not require any direct effect of that law in this country, so I fail to see how, on that point, the Government can be right. It is perfectly plain that we can be a member of the EEA without any direct effect from the European Court of Justice.

[The Solicitor General]

I am sorry, but with respect to my right hon. and learned Friend, I do not agree. He knows that the EEA is a creation that came after what were the European Communities. As I will go on to explain, we have significant concerns about what will happen not just to the EEA as it stands now, but with the inevitable development of EU rules, which will mean that we have little say. The issue of being law takers rather than lawmakers is particularly important to me.

[Mr Grieve]

Will the Solicitor General give way?

[The Solicitor General]

No, I will not give way.

I made that point during the long debates in the referendum campaign. As a dedicated and fervent remainer, I said that when we leave the EU, it means we leave the whole shebang—there is no cherry-picking when it comes to not only the attitude of the UK but, importantly, the position of our negotiating partners.

--- Later in debate ---

[The Solicitor General]

I had better not. I have to move on, I am afraid, and I have taken an intervention from my hon. Friend already.

I want to deal with the charter of fundamental rights, which was mentioned by the right hon. and learned Member for Holborn and St Pancras. We continue to strongly believe that it would not be right to retain rights of action based on incompatibility with the charter or the general principles of EU law after we have left. To keep these in our domestic law, as Lords amendments 5 and 53 seek, would undermine two crucial principles. First, it is not consistent with the proper restoration of parliamentary sovereignty if legislation, including primary legislation, can continue to be disapplied or quashed by the courts on the basis of elements of the EU legal system intrinsically linked to our membership and obligations.

I will deal right away with the comparison made with the Bill’s treatment of the principle of the supremacy of EU law. It is not a comparison that I accept. I would draw a clear distinction between the need to maintain, in a strictly limited sense, a rule that has been central to the hierarchy and interpretation of our statute book for over 40 years and the charter itself.

The latter document came into effect in 2009. It was expressly intended only to reaffirm rights that exist elsewhere, as protocol 30—signed up to by the United Kingdom and Poland—made clear. Suddenly to remove the principle of supremacy would have significant and unintended consequences and would be likely to result in a confused and incoherent statute book. It would merely introduce more uncertainty to the law’s meaning and effect.

[Mr Grieve]

Has my hon. and learned Friend not just highlighted the problem himself? Supremacy carries with it implications that the law, by its very nature, can override other laws. The reason why the general principles of EU law existed before they were incorporated in the charter was a wish to ensure in part that such laws could not apply abusively; yet we are keeping the supremacy and removing the mechanism by which the abuse can, in exceptional cases, by challenged. That seems a very strange thing for a country that wants to enhance its freedoms to do.

--- Later in debate ---

[The Solicitor General]

With respect to the hon. Lady, I must press on.

I am concerned that some people—including no less than the former Attorney General, Lord Goldsmith—seem almost to be contradicting themselves 10 years on. Lord Goldsmith, who was the Attorney General, made his position absolutely clear to Parliament:

“The United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts.”—[Official Report, House of Lords, 9 June 2008; Vol. 702, c. 427.]

It was not the noble Lord but, I think, the right hon. Member for Leicester East (Keith Vaz) who described the charter as having no more significance than a copy of The Beano. I simply ask: what has changed? For that reason, I do not accept that the rights contained in the charter will add anything to the rights of individuals in our country. Equally, I do not accept that rights saved by the Bill will not be justiciable if general principles challenges are excluded. Other sources of rights will continue to exist and operate in UK law.

None the less, we have listened to the concerns that have been raised, particularly in relation to accrued rights. We want to get the balance right. When we last debated the matter here, I agreed to a change that delayed the prohibition of certain rights of challenge on general principles grounds, when the cause of action arose before exit day, for three months after exit. This week, we tabled an amendment in lieu that goes considerably further. It delays that prohibition for three years, subject, of course, to the normal statutory limitation periods, which will continue to apply.

[Mr Grieve]

Having had a gentle dig at my hon. and learned Friend a moment ago, I now thank him, because I know that it was his personal intervention which at least secured that. It is a great improvement, and I think it will be greatly valued. It is likely to apply in very few cases, but it provides a higher level of support.

[The Solicitor General]

I am grateful to my right hon. and learned Friend. I have listened to representations from him and from other Conservative Members on the issue. I believe that we have now struck a reasonable and fair compromise between the concerns and arguments raised by Members in all parts of the House, and I urge Members to support the Government’s amendment.

It is the Government’s ambition to leave our environment in a better state than that in which we found it. That is what we owe to our children and our grandchildren, and that is why the Prime Minister said in January:

“We will use the opportunity Brexit provides to strengthen and enhance our environmental protections—not to weaken them”.

On 10 May, my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs launched a consultation on the development of a new independent statutory body to safeguard the environment alongside approaches to embed EU environmental principles in our own domestic law. However, the Government have listened to concerns raised in both Houses that certainty is required more quickly, and we recognise the intentions behind the amendments tabled.

--- Later in debate ---

[The Solicitor General]

I cannot give way, because I really must press on.

We are committed to proper scrutiny and engagement with Parliament and the public on our corrections to EU law and future changes. In addition to all the changes we have already made to the Bill, there will be a presumption in favour of engagement or consultation where it is proportionate and sensible to do so. Of course, Departments will consult where there is a statutory duty to do so. Departments across Whitehall have already undertaken engagement or consultation with stakeholders for active discussions on areas where that has been proportionate and sensible, and that will only increase.

Most of those who have supported Lords amendment 4 are well intentioned, but some must have known that it would have hugely detrimental effects on how we could deliver a functioning statute book ahead of our exit and in the future. Instead of protecting the law in the crucial areas of employment, equality, health, consumer standards and environmental protection, it would weaken it. By calling this amendment “enhanced protection”, some are seeking to hide a great danger.

By limiting the changes that delegated powers could make to retained EU law relating to the specified policy areas to only those that are deemed technical, the amendment would fundamentally limit our ability to properly correct deficiencies. That risks dramatically increasing the amount of primary legislation that needs to be enacted ahead of our exit, putting more pressure on this place ahead of Brexit. Even the changes deemed to be “technical” enough to be achieved through delegated powers would still face a lengthy enhanced scrutiny process, which the Lords could force to be as long as the 18 months required for legislative and regulatory reform orders. In other words, our statute book could not be made ready for exit by 29 March 2019.

[Mr Grieve]

I note and understand the points made by my hon. and learned Friend, but the intention behind the amendment was not to create difficulty for the Government, but to find an easier way of providing enhanced protection for areas of law. That suggests that the Government should have come back with an amendment in lieu.

[The Solicitor General]

I hear my right hon. and learned Friend. Both he and I have had anxious discussions about the definitions within the amendment. We are seeking to allow protections to be carried forward through our existing framework, so that the sort of changes that need to be made can apply to a whole range of areas. Changes could relate to the trade in seal products—cruelty to seals—or to protecting people on offshore oil and gas installations from fire and explosions, which is in the working time regulations, or to the protection of the marine environment. We need that element of flexibility.

That is not a way of avoiding the procedures of the House; it is about making the law clear, certain and usable to protect all the different categories that we are dealing with. I am worried that we would be kneecapped, not just as a Government, but as a Parliament. There is a lot of work to be done ahead of Brexit, and we need to concentrate on what is fundamental and what will involve change. Lords amendment 4 fundamentally affects how we can do that, so we must oppose it.

My right hon. Friend the Secretary of State for Exiting the European Union left the House in no doubt yesterday of the importance of this legislation. The Government listened in the other place and showed flexibility by tabling amendments that genuinely improved the Bill, but we rightly held firm on those areas where amendments proposed would have an adverse effect. I am somewhat downhearted that the House of Lords has not shown the same level of respect that we show to them and has sought to overturn decisions taken here on important issues relating to the protection of rights. I therefore ask the House to stand behind the Government tonight in ensuring that this legislation is fit for purpose, respects the referendum result, and respects the constitutional role of this House.

--- Later in debate ---

[Mr Speaker]

Order. For a short period there will be a 10-minute limit, but I emphasise that it will be short. I call Mr Dominic Grieve.

[Mr Grieve]

Thank you, Mr Speaker. I shall be brief, because I am endeavouring during the course of this afternoon to finalise agreement with the Government concerning matters we debated yesterday, so I have every incentive to be out of the Chamber. However, I would not wish to leave without pausing for a moment to deal with two issues—one of a rather more specific nature, and one of a wider nature, which has already been touched on by the right hon. Member for Leeds Central (Hilary Benn) and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).

Let me start with the specific matter. We have had a very interesting debate during the passage of this Bill about what we do with retained EU law and human rights. We have felt our way through this, and at the end of his speech my hon. and learned Friend the Solicitor General made some sensible points about the difficulties around the charter of fundamental rights. I do accept that it sits uneasily with a situation in which we bring laws back to this country, although I highlighted to him the inconsistency of having retained EU law without having general principles potentially to override it, because it itself can override other of our domestic laws. That was the justification for it, and I regret that we are not going to keep it, but I welcome the fact that we are at least going to keep it for three years. To that extent, we have made a little progress; I am genuinely grateful to my hon. and learned Friend, and I will accept that.

That still, however, leaves amendment 4—that of Baroness Hayter in the other place—which sought to provide some enhanced protection for certain areas of EU law. These are areas of EU law that I think many Members of this House would recognise as being of special significance, including

“employment entitlements, rights and protection”

and

“equality entitlements, rights and protection”—

something that has featured more and more in our jurisprudence. In the recent case, for example, of Benkharbouche, a lady was discriminated against in an employment setting within an embassy and succeeded, by going to the Supreme Court, in setting aside our existing laws on diplomatic immunity, because they in fact went beyond what was required under the Vienna convention. Those are real areas of progress for our legal system.

Those things will be lost without the charter and the general principles. The worry is that, while I certainly do not think my right hon. and hon. Friends want to diminish areas of equality, employment, health and safety law or consumer standards—we have covered environmental protection, interestingly enough—they have given no protective status whatever to those areas. At some point, the House will have to come back to this and consider whether we should amend the Human Rights Act 1998, which we could do, to do this in a way compatible with our parliamentary tradition and our parliamentary sovereignty. Until we do that, they do not enjoy protection.

Baroness Hayter’s amendment would at least give them this protection: that they could be altered only by primary legislation or by subordinate legislation, which would have to be subject to an enhanced scrutiny procedure to be established by regulations made by the Secretary of State. My hon. and learned Friend the Solicitor General will say that that is massively unwieldy, but actually it is not. All we need is to have a set of regulations that distinguish between technical amendments, which can go through just like that, or other amendments, which would have to be dealt with in a more enhanced form. The flexibility, therefore, is in fact there in the amendment and I do not think it is as unwieldy as the Government suggest. I am afraid that the truth is that, for reasons of their own, the Government just do not want to go down this road. We discussed and debated it at great length in Committee, and although we received delightful and repeated assurances that there was an understanding that these were areas of law that really matter, I am afraid that we did not succeed in getting any further.

I am afraid, because I do not like to have to rebel against the Government line, that I will vote for amendment 4 to retain those protections, when the Government seek to remove them. It is as simple as that. It is, perhaps, a gesture, but it is a gesture designed to put down a marker to say that we cannot ignore this issue for the future. We have pretty consistently ignored them, with the one great exception of what my hon. and learned Friend secured over the three years on the general principles. Respectfully, I will differ from the Government’s approach.

The second issue, which was touched on with great eloquence by the right hon. Member for Leeds Central and my right hon. and learned Friend the Member for Rushcliffe, concerns our future relationship structure with the EU, encapsulated in the EEA Lords amendment, the amendment tabled by those on the Labour Front Bench, and, to an extent, the amendment relating to the customs union or a customs union or a customs arrangement.

Mr Speaker, I do despair. I listen over and over again—every time I stand up in this place, I receive streams of emails—to angry people insisting that the sovereignty of this country is linked to the single issue of being free of the jurisdiction of the European Court of Justice, free of any form of customs union, and free, above all, to keep people we do not like out. That is all very well, and of course one can do those things, but the first thing that completely ignores is the fact that we are subject to myriad international laws, which we observe to the letter—because we are a rule-of-law state—quite cheerfully, and which greatly enhance our commerce, peace and security. We do it all the time because that is the way the world works in a globalised environment, but we have got ourselves so angry and so fixated that we cannot see the wood for the trees anymore.

The consequence of that, which I thought was beautifully put by the right hon. Member for Leeds Central, is that we are careering off trying to do a deal on leaving the EU which entirely ignores the reality of the relationship we have. We have been discussing Ireland’s role. We have dealt with the Irish border issue very well and I am pleased with that. I hesitate to say this here, but I remember once going to Dublin and a very nice Irish economist with the Irish Government said, “Of course, we may not like it here, but the reality is that the subzone we operate in is the British economic zone and it dictates how we operate.” That is of course why we have a common travel area. Similarly, we are—for all our 65 million people, being the fifth largest economy in the world and all the other things we like to trot out, and our pride in our nation state—part of the European economic zone. That is where we trade and where our commerce goes, and although I would love it if we could enhance it, trade elsewhere and encourage the EU to trade elsewhere, that will never be a substitute for where we are.

[George Freeman (Mid Norfolk) (Con)]

I have a lot of sympathy with the points that my right hon. and learned Friend is making, and indeed those that the right hon. Member for Leeds Central (Hilary Benn) made earlier about the EMA, but will he not agree that the purpose of the Bill is to give effect to the continuity of the law at the moment? We have a Trade and a customs Bill coming after the summit. Is that not where these issues should substantively be addressed? In my view, these are mischievous amendments dealing with substantive issues with which I have a lot of sympathy, but this is the wrong Bill to give effect to them.

[Mr Grieve]

My hon. Friend makes a very good point, and I understand it—it is a feature of this place that we sometimes debate and vote on issues that are peripheral to the main point—but there comes a point when one has to stand up and be counted. If it is not this week, it has to be next week, and the truth is I am really anxious for my constituents and anxious about our general direction of travel. I respect the decision in the referendum, but we are closing off options as to how we conduct future relationships, in ways that are utterly damaging to ourselves. In a sense, some of our debates yesterday, and the negotiation I am going to conduct—successfully, I hope—in a moment, are all linked to these fixations, and the consequences for us are really damaging. Yes, of course, the EEA amendment is rather flawed, but it has the merit, unlike Labour’s “motherhood and apple pie” amendment, which I cannot possibly support because it is motherhood and apple pie, of at least having some bite, and today is the day I shall be voting for it.

[Yvette Cooper]

I will start with Lords amendment 24 and the point I raised when the Solicitor General was speaking. This is not a remain or a leave issue. This is not a party political issue. He will have heard the support from both sides of the House for simply continuing with the family reunion arrangements for child refugees that we have right now. I am unable to put my amendment to the vote, because of Standing Orders and the ludicrous programme motion, but I think if I did it would command majority support across the House. It would help a very small number of some of the most vulnerable child refugees, so I urge the Minister to look again at that amendment, simply to continue with the existing arrangements. Whatever arguments we have on both sides of the House about Brexit structures and options, surely we should be able to come together with a humanitarian agreement not to allow Brexit to turn the clock back on this vital help for child refugees.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[Matthew Pennycook]

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

[Mr Dominic Grieve (Beaconsfield) (Con)]

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

[Matthew Pennycook]

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

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

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

“an obstacle to efficiency, productivity or profitability”.

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

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

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

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

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

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

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

--- Later in debate ---

[The Second Deputy Chairman of Ways and Means]

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

[Mr Grieve]

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

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

[Sir William Cash]

Not yet.

[Richard Drax (South Dorset) (Con)]

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

[Mr Grieve]

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

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

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

[Mr Rees-Mogg]

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

[Mr Grieve]

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

[Mr Kenneth Clarke (Rushcliffe) (Con)]

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

[Mr Grieve]

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

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

[Rachel Maclean (Redditch) (Con)]

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

[Rachel Maclean]

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

[Mr Grieve]

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

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Grieve]

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

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

--- Later in debate ---

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

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

[Mr Grieve]

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

[Sir William Cash]

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

[Mr Grieve]

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

[Frank Field (Birkenhead) (Lab)]

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

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

[Mr Grieve]

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

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

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

[Mr Grieve]

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

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

[Vicky Ford (Chelmsford) (Con)]

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

[Mr Grieve]

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

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

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

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

[Geraint Davies]

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

[Mr Grieve]

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

[Frank Field]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

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

[Frank Field]

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

[Mr Grieve]

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

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

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

[Peter Grant (Glenrothes) (SNP)]

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

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

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

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

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[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

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

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

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

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

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

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[The Solicitor General]

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

[Mr Grieve]

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

[The Solicitor General]

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

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[Mr Grieve]

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

“enforced, allowed, and followed accordingly”

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

[Matthew Pennycook]

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

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

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[Dominic Raab]

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

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

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

[Mr Grieve]

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

[Dominic Raab]

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

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[Dominic Raab]

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

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

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

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

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

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

[Mr Grieve]

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

[Dominic Raab]

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

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

Serious Crime Bill [Lords]

Dominic Grieve Excerpts

Monday 23rd February 2015 Commons Chamber

[Fiona Bruce]

That is exactly the point that I am making. If the handicap, or the condition, is diagnosed via the sex of the baby, in such cases the grounds for the abortion, through that diagnosis, is the risk of serious handicap, and on that ground the abortion can be legitimately carried out.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Perhaps I can help my hon. Friend, although I do not think that she needs assistance. Of all the arguments that have been put forward on this matter, the one that has no traction at all is the suggestion that enacting this new clause would lead to the confusion that the hon. Member for Hampstead and Kilburn (Glenda Jackson) fears. It plainly would not. There might be other arguments that can be advanced and of course there will be different views across the House, but that could not possibly happen if the new clause were enacted.

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Considerable concern has been expressed about the impact of new clause 1 and it is right that we touch on that. The Government consider that the new clause would restate our long-standing position on the issue—that abortion on the ground of gender alone is illegal. However, hon. Members will have heard the concerns expressed by a number of groups about the practical implications of new clause 1. Although the Government do not consider on balance that ground E would be affected by the new clause, it is naturally worrying for me as a Health Minister to hear from the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives about the concerns that new clause 1 has caused among health professionals providing termination of pregnancy services to women.

[Mr Grieve]

I am very grateful to hear from my hon. Friend that ground E would not be jeopardised. The Government have access to good legal advice—[Interruption.] I trust that they have access to good legal advice, and it must be the case that the Government have a position on the matter. I am grateful to hear from my hon. Friend that that particular anxiety is completely misplaced.

[Jane Ellison]

I am concerned about the fears that some people have about the practical implications of the new clause, and I think others share that concern. I hope to come on to that

The Royal College of Obstetricians and Gynaecologists highlighted the potential impact on abortions for foetal abnormality—I hear the point that was made on that in two interventions—where an inherited gender-related condition may be indicated, and the possibility that the new clause, if passed, may result in further concerns. The RCOG says:

“Parents with a family history of such a condition may not have the option of Ground E.”

The RCOG also says, in relation to how doctors might feel about the practical implications, that

“doctors deciding not to provide this aspect of gynaecological care”

might do so

“because it is deemed to be too ‘risky’ to them professionally.”

The House will want to be aware of these and other concerns regarding the practical implications of the new clause from the body that represents the doctors who provide these services and whom we entrust with the training, support and education of our future work force.

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[Luciana Berger]

If the hon. Gentleman will forgive me, I am not going to take his intervention.

The Government, along with the chief medical officer, the Royal College of Obstetricians and Gynaecologists, and the Royal College of Midwives, have said that abortions carried out on the sole premise of foetal sex are illegal. As we have heard, updated guidance and instructions to doctors published within the past 12 months have clarified this. All independent sector providers have also agreed to follow the revised guidance as part of their licensing agreements. Let me be clear: we do not need new clause 1 to make sex-selective abortion illegal. However, it is right that we should send a strong message from this Parliament that gender-selective abortions are wrong. We can do that today by requiring the Government to carry out a thorough assessment and produce an action plan to address the root causes of this practice. That is what new clause 25 would do.

The change to the law proposed in new clause 1 would not only fail to address the root issues that lie behind the problem but have serious unintended consequences. I listened closely to the hon. Member for Congleton and to the former Attorney-General, the right hon. and learned Member for Beaconsfield (Mr Grieve), but I point to the text of new clause 1, which it is worth reading out:

“Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.”

It says that nothing is to be so interpreted, so that includes medical grounds, the well-being of the mother, and gender-specific abnormalities. At best, this would create uncertainty and doubt for doctors who administer abortions in these situations and a legal grey area for women who are already facing a very difficult decision. I heard the former Attorney-General’s intervention, but I have listened to many legal experts who have written on the pages of many papers—

[Mr Grieve]

I appreciate that there may be policy arguments and all sorts of good arguments to make, but it is simply incorrect to argue that the new clause would have the consequences that have been claimed of preventing, for example, abortion from taking place where, because of the gender, there was a likelihood of disability. The Minister confirmed that. She was a bit hesitant about it, but she eventually did so when I intervened on her, so I repeat her assurance. My view is that this argument is completely groundless.

[Luciana Berger]

I thank the right hon. and learned Gentleman for his intervention, but, as we have heard, many legal experts dispute that position. I refer to the specific text of the new clause, which says nothing about, and is in direct conflict with, paragraphs (a) to (d) of section 1(1) of the Abortion Act.

The Genetic Alliance has said that

“the consequences of this amendment could be devastating to women and couples at risk of having a child affected by a serious x-linked condition.”

I have heard from one family where two sisters were carriers of x-linked severe combined immunodeficiency, a disease that affects only boys. After years of thinking, one sister decided not to have any children, because she did not want to risk the chance of having to choose between having a very poorly son or a termination. Her sister decided—also after many years of consideration—to have children and went on to have three healthy daughters. Those were the choices that those women made after much consideration and deliberation with their families. How can Parliament take that decision away from them? I am sure that no one would wish to deprive their daughter, sister or partner of that choice. It is surely not for Parliament to rush this through in the short time available and deny families the opportunity to have children or a healthy baby.

Another serious concern is that new clause 1 is not just a clarification of the law, but a fundamental reform of the essential principles on which existing abortion law in this country been based for 47 years. The Abortion Act 1967 places the physical and mental health of the woman as the overriding concern of a doctor authorising abortion. Our current legislation refers to the foetus rather than the unborn child. That is because, across our legislation and common law, children are accorded a wide range of protections and rights that Parliament has previously agreed should not be accorded to the foetus.

Changing the language of the Abortion Act, as this new clause would do, would send a very different signal to the courts and open up different judicial interpretations of abortion or new consequences and restrictions that would go far beyond the issue of sex selection. For the first time since legislation in 1929, new clause 1, if passed, could afford the foetus rights that would be in conflict with those of the mother and it could seriously jeopardise the future of safe, legal abortion in the UK.