European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Ping Pong: House of Commons
Wednesday 20th June 2018 Commons Chamber

It is unthinkable that any Prime Minister would seek to force through a course of action that would have significant consequences for many years which the majority in this House did not approve of. That is unthinkable, and the idea that that is how we would achieve an orderly Brexit is for the birds. The amendment would provide order where there would otherwise be utter chaos and, for those reasons, I urge hon. and right hon. Members on both sides of the House to support the amendment tabled by the right hon. and learned Member for Beaconsfield, to preserve Lords amendment 19P.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I beg to move manuscript amendment (b), to leave out from first “19P” to end.

I am grateful to you, Mr Speaker, for having enabled this amendment to be considered this afternoon by accepting my manuscript. It is a very odd and, I have to say, unsatisfactory aspect of the way in which our Parliament does its business that we frequently end up on ping-pong debating amendments that are irrelevant to what the House is really troubled about. I have to tell the House that, in order to get to this point, it has been necessary also to twist the rules of procedure in the other place, and I am immensely grateful to those peers who facilitated the manuscript amendment that was tabled there and that has enabled us to consider for the first time this afternoon the issue of the meaningful vote in relation to the Government’s view of what it should be and to the suggestion that has come from their lordships’ House. I should like to say here and now how deeply I object to the way in which their lordships are vilified for doing the job that we have asked them to do, which is to act as a revising Chamber and to send back to this House proposals for our consideration.

The issue, which has been highlighted by earlier speakers, is about the form that a meaningful vote should take. There are two options in front of the House. The House will recall that, when this matter first arose last week, the amendment that had come from the Lords included a mandatory element. That is constitutionally rather unusual. Indeed, I do not think that it has happened since the civil war in the 17th century, and I do not think that that ended very well. I seem to recall that it ended with Oliver Cromwell saying:

“Take away that fool’s bauble, the mace.”

Because of this, I considered it to be excessive. I apologise to the House that, in trying to produce something else very late at night last week, I probably did not draft it quite as well as I might have done. However, it led to a sensible discussion, prompted by my right hon. Friend the Prime Minister, who had a number of us in her room and said she would do her best to meet the concerns we were expressing on there not being a meaningful vote on no deal.

Last Thursday, it looked as though we were going to reach an agreement based on exactly the terms of the Lords amendment that has come back to us, but at a very late stage, it was indicated to me that the Government did not feel able to proceed with that. I should like to emphasise that I make absolutely no criticism of those with whom I negotiated, who have behaved impeccably in this matter. Indeed, at the end of the day I have to accept that negotiations may sometimes founder at the last minute. However, this was unfortunate, from my point of view, and I will come back to that point in a moment.

Be that as it may, the Government’s tabled amendment was the one that we are being asked to accept today—the one that simply asks us to note and does not give us the opportunity of amending. Two arguments were put to me to justify that change when it occurred and in the negotiations that followed. The first was that there was concern about the justiciability of the amendment. The Standing Orders of the House cannot be impugned in any court outside of this high court of Parliament, but it is right to say that if one puts a reference to the Standing Orders into a statute, that can raise some interesting, if somewhat arcane, legal issues about the extent to which a challenge can be brought. My view is that I do not believe that the amendment, which is currently the Lords amendment that has come to us, is credibly open to challenge. For that matter, I happen to think that the Government amendment is also not credibly open to challenge either, although it is worth pointing out that it is as likely to be challenged or capable of being challenged as the other. I do not accept a differentiation between them.

The second argument was of a very different kind. It was said to me—this was picked up by the Opposition Front-Bench spokesman—that the Government had real concerns that this issue, which is one of detail, had acquired such a status with those with whom we were negotiating that it could undermine the Government’s negotiating position in trying to get the United Kingdom the best possible deal for leaving the EU. Now, I must say that I found that difficult to accept based on my own range of contacts and on how I thought that the EU is likely to work. However, it is not an issue that I, as a supporter of the Government, can entirely ignore.

I am very troubled about Brexit. It is well known in this House that I believe that we have made an historic mistake in voting to leave, but I am open minded as to what the best course of action should be and respectful of the decision of the electorate in the referendum result. I dislike very much the extent to which we can be fettered or pushed into frameworks of what we have or have not to accept in that negotiation but that is, if I may so, a reason why I should also give as much latitude to the concerns of my right hon. Friend the Prime Minister as she indicates to me that she might have.

[Mr Baron]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I wish to conclude.

In those circumstances, there is an issue that I cannot ignore. As the House will have noticed this afternoon, a statement was sent by the Secretary of State that will become a written ministerial statement tomorrow. The first part of it deals with the position of the Speaker and, if I may put it like this, the piquancy of this is that having on the one hand said that an unamendable motion to note is an unamendable motion to note in a statute, the fact is that it really has absolutely no force at all. The reality is that it is part of the Standing Orders of this House, and it is not open to any interpretation in any court and, ultimately, it will be entirely your responsibility, Mr Speaker, to decide what can or should not be treated as a neutral terms motion. Actually, the statement highlights the fact that, although this debate has been about trying to provide assurance—not just in this House, but to many members of the public outside who are worried about the end of this process and what might happen—the truth is that the assurance does not lie in the words of the statute, except in so far as the statute is the word of the Government. The assurance lies in the hands of this House and, in the first part of the statement, in the power of the Speaker.

I then insisted that a second piece be put into the statement, which I will read out. If I may say so, this ought to be blindingly obvious, but it says:

“The Government recognises that it is open for Ministers and members of the House of Commons to table motions on and debate matters of concern and that, as is the convention, parliamentary time will be provided for this.”

If this House chooses to debate matters, including matters on which it may wish to have multiple motions, the reality is that if we wish to exert our power to do that, we can. In the circumstances that might follow a “no deal”, which would undoubtedly be one of the biggest political crises in modern British history, if the House wishes to speak with one voice, or indeed with multiple voices, the House has the power to do so.

[Chris Bryant (Rhondda) (Lab)]

The bit I do not understand is that many motions have been carried by this House in the past few years—motions tabled by the Backbench Business Committee, by the Opposition and by ordinary Members—but the Government have just let them go through and then completely ignored them. The only thing that has legislative effect is legislation. That is why we must have a meaningful vote, not a pretend one.

[Mr Grieve]

Yes, the hon. Gentleman is right, but if the Government were to concede to the amendment, as drafted in the Lords, for an amendable motion, the House must understand that the Government could ignore it. I can assure the House that it would not be enforceable in any court of law—[Interruption.] No, that really must be understood. It could not be enforceable in any court of law, because that would entirely undermine the rights and privileges of this place. It would be for us to enforce it. Of course, the ultimate sanction that this House has is a motion of no confidence but, short of that, there are other means by which the House can in fact bring its clear view to bear on the Government.

[Mr Baron]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I will not.

In view of that acknowledgement, I must say that I weigh that and the clear words of this statement against what my right hon. Friend the Prime Minister has told me about her anxieties. My judgment—it is purely personal—is that if that is the issue, having finally obtained, with a little more difficulty than I would have wished, the obvious acknowledgement of the sovereignty of this place over the Executive in black and white language, I am prepared to accept the Government’s difficulty, support them and, in the circumstances, to accept the form of amendment that they want. I shall formally move my amendment at the end, because I do not want to deprive the House of the right to vote if it wishes. Members have the absolute right to disagree, but it seems to me that, with the acknowledgement having been properly made, I am content to go down that route.

[Mr Kenneth Clarke]

Will my right hon. and learned Friend give way?

[Mr Grieve]

No, I want to end.

We are facing some real difficulties at the moment. It is rightly said that those whom the gods want to destroy, they first render mad. There is enough madness around at the moment to make one start to question whether collective sanity in this country has disappeared. Every time someone tries to present a sensible reasoned argument in this House vilification and abuse follow, including death threats to right hon. and hon. Friends. There is a hysteria that completely loses sight of the issues that we really have to consider. There is an atmosphere of bullying that has the directly opposite consequence in that people are put into a position where they feel unable to compromise, because by doing so they will be immediately described as having “lost”—as if these were arguments to be lost or won. The issue must be that we get things right.

Right at the other end of the spectrum, we get some other ridiculous things. I have had Daily Mail journalists crawling over the garden of my house in France. I do not quite know, but I think they were looking for silos from which missiles might be aimed at the mansion of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg). The area where I have a holiday home has a history of monsters and witches chucking megaliths backwards and forwards across the channel. Such is the state of our discourse, and that is the very thing we must avoid. We are going to have differences and, if there is no deal, those differences may extend to my taking a different view, as a Member of Parliament, from what the Government might wish. This House has a right to act if there is no deal in order to protect the interests of the British people, and the responsibility in those circumstances lies as much with us as it does with the Government.

[Several hon. Members rose—]

--- Later in debate ---

[Mr Grieve]

Will my hon. Friend give way?

[Philip Davies]

My right hon. and learned Friend did not give way, and I am not going to give way either because time is limited. Parliament cannot vote to reverse the decision of the referendum. People outside this House need to know very clearly today that—

--- Later in debate ---

[Hilary Benn]

It is not for me to advise you, Mr Speaker, but please do not cross any roads between now and the end of this process.

It seems to me that the Government’s intention throughout has been to seek to neuter this House when we come to the end of the process. We are talking about the possibility of facing no deal at all. In his speech from our Front Bench, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) set the position out very clearly: first, not only would we be facing economic difficulty of the most serious kind—with impacts on trade, on our services industry and on broadcasting—but there would be impacts on the security of our nation, because with no deal in place, how would the exchange of information continue? These are not minor matters; they go to the heart of the Government’s responsibility to make sure that we are safe, that industry works, that taxes are raised and that public services are paid for. That is why people are getting exercised about this. It is not just some amendment to one Bill; it is the most important decision that the country has faced for generations.

As my right hon. and learned Friend pointed out, we are not ready to cope with the consequences. Members should contemplate this, for a moment: if, because the House cannot do anything about it, we fall off the edge of the cliff, and future generations look at us and say, “What did you do at that moment? What did you do? Didn’t you say anything?”, are we, as the House of Commons, really going to allow our hands to be bound and say, “Well, at least I took note of what was happening”? Our responsibility is not to take note; it is to take charge, to take responsibility and to do our job.

[Mr Grieve]

I assure the right hon. Gentleman that, if he looks at the Standing Orders, he will see that, if the House wants to take charge at that point, it will be able to do so. If necessary, I will join with him in doing just that.

[Hilary Benn]

I absolutely bow to the right hon. and learned Gentleman’s expertise, but I am afraid that, as my right hon. and learned Friend the Member for Holborn and St Pancras pointed out earlier, under this Government, we have sat on these Benches on too many occasions, time and time and time again, on which the House has used the Standing Orders to debate a matter and pass a motion but the Government have sat there and said, “We’re not taking any notice of you whatsoever.” That is why the opportunity to ensure that we have the right to amend a motion is, in the next few minutes, in the hands of this House. There will be no further opportunity to take back control, so I hope the House will do so by voting in favour of the amendment of the right hon. and learned Member for Beaconsfield.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Tuesday 12th June 2018 Commons Chamber

[Mr Davis]

With great respect, the hon. and learned Lady is a lawyer, and she knows that the words in an Act of Parliament matter, and matter very precisely, rather more than an individual word—[Interruption.] They matter very precisely. Let me explain why.

As I said, “necessary” is not a synonym for sensible, logical or proper. In many cases, changes such as correcting inconsistencies, changing terminology, removing redundant provisions, or improving clarity and accessibility could be left unmade, even if the consequences were perverse. That is not the best outcome for businesses or individuals across the United Kingdom. I do not believe that their lordships intended to constrain our ability to change the names of documents such as European aviation documentation. Nor do I think that they intended to require us to use cumbersome terms such as “national regulatory authorities of member states”, and then to have to designate our national regulators underneath that. That would be an inefficient way of making Ofcom the regulator for our open-access internet legislation, for example. This will be UK law, applied only in the UK. It would be confusing to businesses and individuals to keep laws that suggest otherwise, but such changes, while appropriate, might fail the “necessary” test.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand the point that my right hon. Friend is making, but I have to say that I am not sure that I agree with him. I think that all the examples that he has given would meet the necessity test without any difficulty at all. Where the necessity test provides a higher bar is that if it were thought that a Minister was using powers to change legislation in a way that was not necessary, he would be prevented from doing so. My right hon. Friend cites examples, but I just do not think that the test would be a problem for a Minister at all.

[Mr Davis]

My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.

The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.

--- Later in debate ---

[Mr Davis]

If there were no deal for some reason other than the House rejecting it—it is incredibly, almost implausibly, unlikely, but let us imagine that the Government decided that they would not have a deal at all—we would of course do the same thing and come back and make a statement to the House, and the House would then have the right to respond.

[Mr Grieve]

I am grateful to my right hon. Friend for giving way. I recognise some of the problems that he has and why the Government came forward with their amendment in lieu, and some of the deficiencies that can be identified in the Lords amendment. But the simple fact is that the Government have not made provision for no deal, and there is a way of doing it. The amendment that I have tabled provides a mechanism for doing that. One of the key issues for me at the end of this afternoon will be whether we make some progress on having a proper structure to address no deal. I do not think that this Bill can finish its course and get Royal Assent until we have that.

[Mr Davis]

I thank my right hon. and learned Friend for his view on this. He sort of expressed it in an amendment that he tabled late last night, so I only saw it this morning. I have not really had a lot of time—[Interruption.] Well, this is an interesting demonstration of the Labour party’s perception of how easy it is to make constitutional law on the fly. Its own voters will come to a view on that.

Let me say this with respect to my right hon. and learned Friend’s proposed amendment—as he knows, I am always open to have a conversation with him on this although he seems to have fallen foul of my telephone security system—I always want to keep three principles in mind. First, we must never do anything that undermines the Government’s negotiating position, or encourages delays in the negotiations. That is very, very important. Secondly, we cannot change the fundamental constitutional structure, which makes the Government responsible for international relations and international treaties.

--- Later in debate ---

[Mr Speaker]

Order. The right hon. Member for Twickenham (Sir Vince Cable) cannot give way; he has concluded his oration. We await the thoughts of the hon. Member for North West Norfolk (Sir Henry Bellingham) at a later stage, perhaps.

[Mr Grieve]

I was amused to discover that my right hon. Friend the Secretary of State was a little taken aback by the amendment I tabled late last night. I tabled it with his best interests at heart. Having spent last week understanding that he might imminently be joining me on the Back Benches and realising that Lords amendment 19, if endorsed by the Commons, might precipitate the same thing again, I thought I ought to do what I could to help him. That is why I tabled my amendment, in addition to the one he has tabled, in lieu of the Lords amendment.

I must tell the House that I really am worried: the irrationality of the debate on the detail of Brexit is truly chilling. A person opens their newspaper and discovers they are about to prevent Brexit, when what the House is doing is legitimately looking at the detail of one of the most complex legal and political exercises in which we have ever engaged in peacetime, and, as a result, our ability to have a rational debate entirely evaporates. If we continue in this way, we will make mistakes and not achieve the best possible outcome.

The House of Lords was not acting irrationally when it agreed amendment 19. It had picked up on something that ought to be of great concern to everybody in this House—namely, that although we can make provision for achieving a deal, if we do not achieve a deal at all, we will be facing an immense crisis. It might be that some of my colleagues on the Government Benches are excited at this prospect and think it a wonderful moment, but I am not; I think it will be catastrophic. The question, therefore, is: how do we take sensible steps, in anticipation of this, to try to ensure a coherent process for dealing with it? That is what this is about. It is not about obstructing Brexit.

If we want to obstruct Brexit, there are plenty of other ways to do it. We could replace the Government with one that would like to stop it, although, having already triggered article 50, we would still have to get the consent of our EU partners. There is, then, a complete constitutional incoherence in imagining that the Bill and the way it is presented somehow leads to that dastardly outcome.

[Mr Jacob Rees-Mogg]

My concern about my right hon. and learned Friend’s amendment is that it would change the constitutional balance and separation of powers. There is a perfectly reasonable way of ensuring that the Government do the proper thing, and that is a vote of no confidence. As long as the Government maintain the confidence of this House, they ought to be able to negotiate international treaties, but if they fail in their negotiations, the House has a remedy that has been a remedy for very many years.

[Mr Grieve]

I take my hon. Friend’s point, but I would like him to consider for one moment the last part of my amendment, new section 5C, which deals with what happens if, on 15 February 2019, we have no deal. His invitation would be for the House to express no confidence in the Government and to get rid of them. Can one imagine a more chaotic process than the triggering of a general election five weeks before we fall off the edge of the cliff?

[Justine Greening (Putney) (Con)]

I agree with what my right hon. and learned Friend is saying. I think that, far from suggesting that his amendment was wrong, my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) gave the very reason why it is sensible to adopt this structural process to deal with the different scenarios that the House may face.

[Mr Grieve]

I agree entirely with my right hon. Friend. Let me explain. I did take on board the Government’s concerns regarding the Lords amendment, but I could see that the micro-management of their negotiating position after the autumn, if there were no deal, could present difficulties. My amendment sought to avoid that by doing two things. First, it sought to provide a mechanism whereby no deal, if there is no deal, must come to this House. That would provide great reassurance to all Members that there was a system in place to deal with the position. Similarly, there would be a system in place to deal with the rejection of a deal, and finally—and only then would there be a mandatory condition —a system that would operate if by February we were still faced with an impossible position of having no deal at all.

[The Solicitor General (Robert Buckland)]

Of course I accept that my right hon. and learned Friend and other colleagues wish to discuss further the role that Parliament will play in all the Brexit scenarios that may present themselves to us. We cannot bind the negotiations, nor can we disrespect the referendum result, but—as my right hon. Friend the Secretary of State said in his speech—we do commit ourselves to meeting to see how we can build on Her Majesty’s Government’s amendment (a) in lieu today, ahead of the Bill’s stages in the House of Lords, and to meeting my right hon. and learned Friend tomorrow to make that important progress on what we have achieved today.

--- Later in debate ---

[Mr Grieve]

I take my hon. and learned Friend’s comments at face value, and I am most grateful to him for making them. He must understand, however, that, as usual when we reach this stage of a process, we face some difficult challenges. There is a Lords amendment, and if we agree to it, that is what will go into the Bill. Alternatively, we may endorse the Government’s approach and support the amendment in lieu. The Government could, I think, adopt my amendment; it is a rather arcane procedure, but they could include it. If they do not want to do that, however, I shall need some pretty cast-iron assurances that when the Bill returns to the Lords, with the Government’s amendment in lieu, we will implement significant parts of what I have put forward, because we cannot allow a situation in which there is no mechanism for dealing with no deal.

[The Solicitor General]

Overnight, I read my right hon. and learned Friend’s amendment (ii) to Government amendment (a) very carefully, and I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think about the other parts of the amendment—[Interruption] —but by indicating my position on a key part of it, I am indicating that the Government are willing to engage positively ahead of the Lords stages.

[Mr Grieve]

Again, I am very grateful to my hon. and learned Friend, and let me say to the House that I do not think his views should be dismissed. I am conscious that if we are to make progress, we ought to try to do this by consensus. However, my hon. and learned Friend must also understand—as my right hon. Friend the Secretary of State must understand—the difficulty in which the House finds itself when faced with a choice of this kind. I have been through the same process in opposition and now in government. If the House makes the concession of allowing the dialogue to continue—and I can see the merit in that—it must be done in good faith. Let me say to my hon. and learned Friend that without that good faith, the other place will put the amendment back in, and the good will will be gone when the Bill comes back to this House.

[The Solicitor General]

I can give my right hon. and learned Friend that assurance. Everything that I do with him and other colleagues is always in good faith, and that will remain the case.

[Mr Grieve]

I am grateful to my hon. and learned Friend. I was glad to hear what he said about the principle—which, in my view, is entirely innocuous—that

“Within seven days of a statement under subsection (4) being laid, a Minister of the Crown must move a motion in the House of Commons to seek approval of the Government’s approach.”

That is not exactly rocket science. The second principle is that there must be a mechanism providing for a Minister to come to the House of Commons by a suitable date—and I think 30 November 2018 must be the one—in the event of no deal, so that the Government can tell the House how they intend to proceed and seek the approval of the House for that.

I know that subsection (5C) causes my hon. and learned Friend much more difficulty. I understand the constitutional issue, and I will come to that before I finish my speech; but the reality is that without a mechanism whereby the House can properly shape the crisis that will be enfolding us at the end of February if we have no deal, we will do it in an ad hoc way, which is likely to be infinitely more damaging to the wellbeing of the citizens of the United Kingdom than putting together a package that can be looked at now.

[The Solicitor General]

As usual, I am listening very carefully to my right hon. and learned Friend’s observations. They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity ahead of the Lords—

[The Solicitor General]

Of course, Mr Speaker. I was about to give a clear undertaking to use my right hon. and learned Friend’s comments as the basis for structured discussions ahead of the Lords stages. [Interruption.]

[Mr Grieve]

I am grateful to my hon. and learned Friend. Obviously, the House will have to make up its mind about how it wishes to proceed, but, as I have said, there must be a proper understanding of the disquiet that is felt on both sides of the House.

[Chris Bryant (Rhondda) (Lab)]

I know that the Solicitor General has spoken in good faith, but would it not be best for those discussions to take place in a forthright way, for us to vote with their lordships for their lordships’ amendment and for the Government to return to the matter in the House of Lords after the discussions?

[Mr Grieve]

I fear not. I think the reality is that if we accept the Lords amendment, that will be the end of the matter. That is the problem that we face in this House.

[Mr Kenneth Clarke]

Both my right hon. and learned Friend and I accept without hesitation the good will of our hon. and learned Friend the Solicitor General, who is doing his best to resolve the slightly odd situation that we are all in. I think that the majority of Ministers—although I do not know about my hon. and learned Friend—would give my right hon. and learned Friend the undertaking for which he is asking now, and that the majority of our party would be quite happy with an arrangement of the sort proposed in his amendment. However, all we can have is what we had in Committee—offers of good faith, discussions and earnest attempts—because our proposals will be vetoed by the hard-line Brexiteers in the Government.

[Mr Grieve]

I am grateful to my right hon. and learned Friend. I think that we will hear more about that as the debate unfolds.

[Sir William Cash]

Will the hon. Gentleman give way?

[Mr Grieve]

No. I am sorry.

Let me end by saying this. The idea that it is wrong, in a crisis, for Parliament to direct the Government what to do is plainly fallacious. It cannot be right. We are entitled to do that. Of course, if the Government do not want to do what we direct them to do, that is another matter.

[Several hon. Members rose—]

--- Later in debate ---

[Mr Grieve]

We have to be realistic, and there is an issue here. If the Government wanted to accept the entirety of the amendment, that could probably be done this afternoon and that would be the amendment that went back to the Lords, incorporated in theirs. In fairness to the Government, I have always appreciated that there might be some tweaking to be done. I understand that. Having said that, does the hon. Gentleman agree that there needs to be some certainty that the substance of this amendment will come with the acceptance of the Government in the other place?

[Mr Leslie]

That is right, and a bird in the hand is worth two in the bush. I suggest that it is far better to have that amendment in the Bill as it goes to the other place, which may decide to tweak or change it following discussions. That seems to reflect what feels like the majority view in the Chamber today on the need for a sense of certainty that something will be done. This is not just a matter of one Minister, because a Minister’s word can be given and then changed—

Leaving the EU: No-deal Alternatives

Dominic Grieve Excerpts

Wednesday 21st February 2018 Westminster Hall

[Antoinette Sandbach]

I certainly do. It delivers what many people voted for, which was to leave the political institutions of the European Union while continuing our prosperity and building on our common links with the European Union. It would enable us to be in that common market that so many people originally voted for, with all the benefits that it entails for our businesses and constituents.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My hon. Friend makes a powerful and compelling argument. Does she agree that we cannot ignore the fact that we are now 20 months down the road from the referendum? Whatever people might have voted for in the referendum, the reality of our current negotiating position will have to dictate the public’s acceptance of what we are eventually able to deliver. To simply live in the past as to what people’s views were in the middle of 2016 is to fly in the face of the reality of the evolving picture at a European level and what we can in practice achieve that is best for our country.

[Antoinette Sandbach]

I am grateful for my right hon. and learned Friend’s intervention. He calls to mind the comments of Bismarck, who said that

“politics is the art of the possible.”

It is my view that this is a possible and realistic achievement. It should be the Government’s plan B. We should be looking at this option as a realistic alternative. I cannot understand why, when we talk about a no-deal Brexit, we discuss only WTO rules and this eminently sensible, common-sense option, which would help to preserve economic prosperity in this country but deliver leaving the EU’s political institutions, is not treated with more seriousness by the Government.

My right hon. and learned Friend has rightly made the point that we are 20 months into the negotiations. We need to ensure that our plan B is credible and deliverable in a way that does not damage this country’s future, our shared values or the prosperity with the EU that has delivered for us over our 40 years of membership. The EFTA option gives us a huge opportunity not to throw the baby out with the bathwater, which nobody voted for.

--- Later in debate ---

[Antoinette Sandbach]

I entirely concur with the hon. Gentleman. My hon. Friend the Member for Wimbledon (Stephen Hammond) is in his place, and in a previous debate he eloquently outlined the benefits of and difference between EEA-EFTA membership and full membership of the European Union.

[Mr Grieve]

Does my hon. Friend agree that there seems to be a misconception about the nature of the European Union? Listening to the intervention made by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), I picked up the idea that the EU is some sort of sovereign entity. But it is not; it is an international treaty organisation, and therefore to ask it to change its rules base to accommodate the kind of access that was wanted, but which comes without subscribing to the rules, will be impossible in practice.

[Antoinette Sandbach]

I fear that my right hon. and learned Friend may be right, but I am very happy to give the Government the benefit of the doubt in their negotiations and to seek to achieve the aims that they aspire to. However, I am outlining the consequences of a no-deal, and if the Government are unable to achieve their aims, EEA-EFTA membership should be the plan B, alternative option, which the Government need to give greater consideration to.

European Free Trade Association

Dominic Grieve Excerpts

Wednesday 7th February 2018 Westminster Hall

[Stephen Hammond]

First of all, nothing in EFTA implies a customs union; there is no customs union with EFTA. That myth is being perpetrated. My hon. Friend is absolutely right that Switzerland is not in a customs union, and nor are any of the other EFTA members. I accept that we are likely to leave the customs union, but as he will know, it is the Government’s stated policy, in the Prime Minister’s Lancaster House and Florence speeches, that the possibility of a customs union is left open. Nothing has changed in terms of Government policy, so I am entirely in line with Government policy on that.

[Mr Dominic Grieve (Beaconsfield) (Con)]

On that point, it is also clear that the first-stage agreement that we reached in December, concerning the border between Northern Ireland and the Republic, must imply the maintenance of a form of customs union. What form that might take is clearly open to some level of debate, but as my hon. Friend may agree, it is quite explicit that it must follow that there is regulatory alignment to prevent the need for customs checks.

[Stephen Hammond]

As ever, my right hon. and learned Friend makes the point rather better than I can. It is absolutely clear that that is implicit and, based on the evidence we heard in the Treasury Committee, explicit in what the Government signed or agreed to at the end of phase 1 of the negotiations in December.

EFTA provides a great deal of flexibility, as we have explored in a number of interventions. It keeps open the option of joining the EEA agreement, which I think would be the right thing to do. However, it must be right that, as we leave the EU, we keep our options open. I say to the Minister in all sincerity that there is a lack of clarity over exactly what type of deal the Government want. We talked about CETA and beyond, and as I said a moment ago, CETA is the most advanced trade agreement that the EU has yet signed with a third country. I understand that the Government want to go beyond that, but the clock is ticking, and in trying to spend a huge amount of time carving out a middle ground between CETA and the EEA, the chances are that we may end up with nothing at all, or with something well below the Government’s ambitions.

It seems to me that an EFTA-style EEA relationship—the Norway option—could be achieved rapidly and will go much further than CETA goes at the moment. That is a route we could pursue for the UK’s best interest, and it must not be allowed to be dismissed without proper analysis and consideration.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Matthew Pennycook]

The hon. Gentleman tempts me down an avenue that has nothing to do with the point I am making, which is that it remains unclear why the Government tabled three exit day amendments to their own Bill which have sown further confusion. We do not know why they did that—whether it was driven by Tory party management considerations or some other reason. The effect of those Government amendments would have been to end the jurisdiction of the ECJ on 29 March 2019, thereby preventing agreement on a transitional period on current terms.

The Government clearly soon realised their mistake and to save face enlisted the right hon. Member for West Dorset (Sir Oliver Letwin), who is not in his place, to table amendments to loosen the legislative straitjacket they themselves had created. But his amendments, which the Government have accepted, only provide a limited form of flexibility. Ministers may now amend the definition of exit day in clause 14 for the purposes of the Bill if the date when the treaties cease to apply to the UK is different from 29 March 2019. However, there is good reason to argue that that power might not be sufficient to facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. If it is not—this might end up being the most bizarre aspect of the Bill’s curious parliamentary process—the Government will find themselves in the ludicrous position of having to amend this Bill when they bring forward the withdrawal agreement and implementation Bill later this year.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I think that is a virtual certainty in any event. On the basis of the Bill that the Government have promised the House for the end of this year, it seems to me that it will be a substitute for the arrangements under the existing European Communities Act, so I think that must be what is going to happen.

[Matthew Pennycook]

I agree, but what I would say—and why I would urge Members to support this amendment—is that it need not require the amendment of this Bill to allow the facilitation of transitional arrangements on the same terms in addition to the provisions that the right hon. and learned Gentleman is right to say will be needed in that further Act of Parliament.

We still believe that it should be Parliament, not Ministers, that decides exit day for the various purposes in the Bill. Our amendment 1 helpfully bolsters the position set out by the Prime Minister in the Florence speech by ensuring that this Bill can facilitate transitional arrangements on the same terms as now.

Given that this is, of course, Government policy, it is a wonder that the Government did not bring forward such an amendment themselves. They did not do so because they cannot agree on what the transition means. There can be no clearer evidence for that than the recent appointment of the hon. Member for Fareham (Suella Fernandes) to the Department for Exiting the European Union team, given her past form in seeking to actively undermine the policy position set out in the Florence speech by encouraging her colleagues to sign a European Research Group letter to the Prime Minister objecting to crucial aspects of it. It is ironic that those Tory MPs who voted for amendment 7 back in December are viewed by many as having betrayed the Government, while those who actively undermine stated Government policy appear to get promoted in quick succession.

Amendment 1 is simply an attempt to restore some common sense to the question of exit day for the purposes of this Bill. It would ensure that this Bill can facilitate any transitional arrangements agreed as part of the article 50 negotiations and that we avoid the ludicrous situation of potentially having to come back to amend this Bill in order to do so. It is in line with stated Government policy, and we therefore look forward to the Government not only accepting it, but welcoming it.

The Opposition have made it clear from the outset that a Bill of this kind is necessary to disentangle ourselves from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave. But as we argued on Second Reading in September last year, this Bill is a fundamentally flawed piece of legislation. Sadly, despite the small number of welcome concessions, and the implications for the legislation of the defeat the Government suffered at the hands of amendment 7 and the right hon. and learned Member for Beaconsfield (Mr Grieve) on 12 December, it remains a fundamentally flawed Bill. Those flaws still need to be addressed either by this House today or in the other place, and on that basis I urge all hon. Members to support new clause 1 and amendments 2 and 1.

--- Later in debate ---

I have put into new clause 2 the sort of basic headings that we would expect to see in a pretty basic trade agreement. If the withdrawal agreement is to be acceptable to me, those things need to be spelled out, because I could not recommend an agreement to my constituents unless we had buttoned down some degree of certainty with our EU counterparts so that we knew what we were to be getting.

[Mr Grieve]

The issue of the withdrawal agreement was supposed to be resolved last December, as part of phase 1 of the negotiations. Does the hon. Gentleman agree that it is abundantly clear that there are massive potential pitfalls, particularly in respect of the relationship with the Irish Republic, in the translation of what appears on the face of it to have been a mutually convenient fudge into what will in fact be a binding treaty obligation?

[Mr Leslie]

That is absolutely right, and the right hon. and learned Gentleman neatly and helpfully moves me on to my new clause 3, which deals with the question of the Irish hard border. I think that many people read the phase 1 agreement in an optimistic light. In many ways, those words were all things to all people. The can was kicked down the road, but there will have to be a translation into some sort of legal text by the time we get to the withdrawal agreement. Heaven help us when the two sides to the negotiations have to start talking in specific terms.

The Prime Minister had a slightly different view from the Republic of Ireland of what the phase 1 agreement meant. She reported back to the House that it was simply to be restricted to the issues listed in the Belfast agreement, which does not, of course, include trade in goods, to mention just one small policy area. There are massive questions about the border between Northern Ireland and the Republic of Ireland. People in that area share reciprocal healthcare, as well as environmental factors such as rivers, streams and lakes. They have a shared energy market and shared fisheries, food and plant arrangements. All those are shared because of the very geography of what are two distinct countries, so trying to fudge the issue just will not work, particularly if the UK is a third party.

--- Later in debate ---

[Mr Speaker]

Order. On my reckoning, about 12 people want to speak. I advise the House that it is reasonable for the Minister to have at least 20 minutes to reply to the various points that have been made—[Interruption.] Someone chunters from a sedentary position, “No more.” The Minister should certainly be allowed 20 minutes, and Members can do the arithmetic for themselves. I am encouraged, as I call possibly the most courteous Member of the House of Commons, Mr Dominic Grieve.

[Mr Grieve]

Thank you, Mr Speaker. I shall endeavour to practise courtesy by act rather than by anything else, in being brief.

It is a pleasure again to participate in this afternoon’s debate, which is wide-ranging and has moved away from the rather narrow focus of some of the perfectly sensible amendments that have been tabled and that are designed to explore the undoubted deficiencies in the legislation; for example, the Opposition have put forward sensible proposals in new clause 1. Those are matters that we have looked at for a considerable number of days.

I wanted to focus on an issue that has arisen this afternoon and is a particular concern to me. In doing so I do not want to repeat what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said. I agree with every word he said, and there is no point in my saying it again. There is a separate angle, however, on which we might pause and reflect. New clause 17 raises the issue of whether we should have continued participation in the single market and customs union.

If we look at the Bill as drafted and at its original intention, particularly now that the pernicious effects of clause 9 have been removed, we can see that it is about the legal order of the United Kingdom after we have left with no deal at all. So an argument can be made that this legislation is perhaps not the most satisfactory place to try to bring in the single market and customs union. However, that raises an entirely legitimate issue. Ultimately, as we trundle on with the legislation it becomes more and more apparent how different it is from the Government’s intention regarding the end product that they want the country to enjoy.

The Prime Minister set out her vision in the Lancaster House and Florence speeches. As I have said before, but it is worth repeating, if she succeeded in achieving everything that she set out, there might well be broad consensus in the House, because we would lose those aspects of EU membership that we do not like and at the same time we would retain all the benefits of EU membership that we—or at least many of us, the vast majority of hon. Members—consider desirable.

The truth is that most of us—again, I suspect—in the House know that that is unlikely to be achieved. We are asking our EU partners to engage in the bending of the rules of the legal order, which is not something that can be readily obtained. We started out on this negotiation with a major fallacy: the EU can somehow be twisted around from matters of self-interest into entirely changing its nature. In fact, it is an international treaty organisation underpinned by law: that is what it is. Having visited Brussels on Monday, it was brought home to me—I already knew it—very clearly that that is indeed the nature of the entity with which we are dealing. Unless we are realistic about that we cannot hope to secure a reasonable outcome to our negotiations.

What troubles me particularly is the timing of all this. The reality is that the EU, for very good reasons, wants order. It is a legal order, and it wishes order to exist, even when countries are leaving it. The point was made to us that ultimately it would negotiate according to our red lines and, if we decide to put red lines down that make it impossible to reach the sort of agreement that the Prime Minister wants, we will not secure that agreement—it is very simple. On top of that—I would like to add this point to the one made by my right hon. and learned Friend the Member for Rushcliffe—all of this is likely to come to a head at a very late stage indeed for rational judgments by the House about what is in the national interest.

--- Later in debate ---

[Sir William Cash]

In his discussions with Mr Barnier, did my right hon. and learned Friend gain any impression that the European Commission, and indeed Mr Barnier himself, had taken on board the fact that in relation to the legal order to which my right hon. and learned Friend refers—the European Union and its institutions—article 50 actually represented a radical change by giving people the right to withdraw if they wished? That changed the nature of the European Union from the day on which article 50 was passed as part of the Lisbon treaty.

[Mr Grieve]

I am not sure I entirely agree. I do not think that Mr Barnier has ever suggested that the United Kingdom cannot withdraw under article 50—we plainly can. Indeed, new clause 6 deals with the question of whether article 50 is revocable. I think that it almost certainly is, so it is a pertinent question for the House to ask, although it is not an easy one for the Government to answer, in fairness, as ultimately it could probably be determined only by the European Court of Justice.

I do not think that the fact that we can revoke article 50, or that article 50 has kicked in, alters the EU legal order. The EU intends to continue with the United Kingdom outside. On the question of our future relations with the European Union, we will be outsiders, and some things that we are asking for, including a special and deep relationship, are currently—and, I fear, for ever—incompatible with the nature of that legal order. We either have to be in or we will get something that is very much less than what we have set out as our request. I therefore say to my hon. Friends that these amendments are perfectly pertinent, because they raise questions that will be asked over and over again, and with greater urgency, as each week passes in the course of this dramatic year.

I will end by saying this to my hon. Friend the Member for Stone (Sir William Cash). I listened very carefully to what he had to say. He is an individual of complete and clear integrity when it comes to his own views about how the United Kingdom’s constitution should work, which is one of the reasons why he has been so dramatically opposed to our EU membership—a matter on which we differ—but here he was, highlighting that in the process of taking ourselves out of the European Union, we are smashing up our domestic constitution big time—“O Brexit! What crimes are committed in your name?” It is imperative that we in this House manage the process so that we prevent the sort of mischief that he has identified, but I am afraid that, in part, it is inherent in the nature of the venture that we have taken on.

[Christine Jardine (Edinburgh West) (LD)]

Does the right hon. and learned Gentleman agree that this constitutional danger is heightened by the fact that Conservative Members from Scotland are not listening to growing concerns about our lack of membership of the single market and the customs union, and the implications for our economic future, but simply following the Government through the Lobby?

[Mr Grieve]

I am afraid that I disagree entirely—far from noticing any such thing, I have noticed the very reverse. My Scottish colleagues are very much alive to the constitutional implications of Brexit and have been working assiduously to address them, while not falling into the trap, as I am afraid the hon. Lady and some members of her party have, of constantly characterising what is a national constitutional debate—indeed, a crisis—in binary terms, with Scotland always appearing either as a victim or as having a halo over its head, neither of which, in the scheme of human existence, is justified.

[Christine Jardine]

I think that the right hon. and learned Gentleman might have misunderstood what I meant, which is that the binary nature of what the Scottish Conservatives are doing is heightening the binary argument in Scotland, and indeed playing into the hands of those who seek nationalism.

[Mr Grieve]

I am afraid that I disagree. My Scottish colleagues have been behaving with extraordinary good sense, particularly their leader, Ruth Davidson, and my colleagues here at Westminster. Perhaps I have misunderstood some aspect of the hon. Lady’s question. Far from seeing them as supporters of crazy ideas in the context of Brexit, I think that they have consistently shown a moderate common sense in trying to understand the wider United Kingdom position and Scotland’s distinctive position, and trying to take this forward. If I may say so, they are exactly the sorts of allies I want in the course of the work that I will continue doing in this House.

I have spoken quite enough and I thank the House for its indulgence.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I rise to speak to amendment 10, which stands in my name and those of colleagues across the House. I think this follows logically from the wise words that the right hon. and learned Member for Beaconsfield (Mr Grieve) has just delivered to the House. Like him, I support new clause 17, and I also want briefly to mention new clause 1 and amendment 44.

From the start of the Bill’s passage through the House, my concern has been about how it concentrates power in the hands of a small group of Ministers. Be we liberals, communitarians, socialists or conservatives, in this House we are democrats all. It goes against all our British political traditions to concentrate power in the way the Bill still does—even after the amendments have been made—over decisions that could affect our children and grandchildren for generations to come. The referendum decided that we will leave the EU, but it did not decide how, and those decisions should not be so concentrated in the hands of a small group of Ministers, especially in a hung Parliament.

In Committee, we often went one step forward and then two back with regard to the interests of parliamentary democracy. That is why further amendments are needed today. Ministers did agree to the amendments put forward by the Procedure Committee, which will give Parliament a bit more of a say over whether the affirmative or negative procedure is used for secondary legislation, but Parliament will not be able to insist on which procedure is followed or that changes should be made in primary rather than secondary legislation. That is why new clause 1 is so important.

The Bill would still allow a small group of Ministers to take away workers’ rights and equality rights, which have been hard fought for over generations and hard won through this place, and they would be able to do so with hardly any say from Parliament. Therefore, those of us who have been part of the fight for greater equality and for workers’ rights for many years cannot just stand by while those rights are diminished. Nor should any of us, whatever our view, be part of agreeing to the wide scope of ministerial powers still embedded in clauses 7 and 9, allowing Ministers to do simply “as they consider appropriate”. Amendments 44 and 2 are important attempts to limit those powers to what is necessary, and Parliament has a responsibility to do so. I hope that those in the other place, whose job is to scrutinise the Executive and stand up for Parliament, will consider these matters very seriously when the Bill reaches them.

Parliament has agreed that there should be more democratic say over the withdrawal agreement itself. The previous amendment 7, which was agreed to in Committee against the wishes of Ministers, made it clear that we must have a meaningful vote on the withdrawal agreement. It said that that vote should apply not to a motion, but to a statute, and that we should be able to take a decision before the treaty is ratified, not after, and before implementation starts. I know that Ministers have considered rowing back on that, and I strongly warn them not to do so. They should respect the spirit of our debates and the views of this House.

Several Government amendments relating to the date on which we will leave have undermined that meaningful vote. My amendment 10 seeks to deal with the conflict between the previous amendment 7, which was passed, and the amendments tabled by the right hon. Member for West Dorset (Sir Oliver Letwin) and the Government. Those amendments on the date would bind Parliament’s hands and concentrate powers with Ministers when it comes to considering the final withdrawal agreement and as we come to the supposedly meaningful vote.

In Committee, we debated the fact that it was unwise at this stage in the negotiations to include the date in the Bill, because that could make it difficult to handle late problems in the process or to renegotiate any aspects of the agreement if we get a bad deal. It also restricts Parliament’s ability to scrutinise and call for changes, if necessary, once we see what the Government propose as the final deal. Suppose, for example, the transitional arrangements miss out something that is extremely important for our security, or for a sector of our economy. Parliament should at least have the chance to debate that and decide whether it wants to call on the Government to go back and try to negotiate a further change, or propose adjusting the timings—even for a few months—while the issues are sorted out. The Bill, as it stands, prevents us from doing so, and it could mean that Parliament is simply timed out. It would force us back to the very situation that Parliament rejected when it passed the previous amendment 7. In other words, Parliament would basically have to choose between the Executive’s deal and no deal at all. That is not a meaningful vote.

The amendments tabled by the right hon. Member for West Dorset do not help, because they allow the date to be changed, but only by Ministers—not by Parliament, even if Parliament takes a different view from the Executive. In addition, they allow the date to be changed only if an alternative date is included in the withdrawal agreement, so if Ministers agree an alternative date with the EU, they can use secondary legislation to change the date in our legislation, too. That is not on, because it will effectively give the EU Parliament more of a say than this Parliament over whether the date should be changed. That is hardly taking back control.

--- Later in debate ---

[Chuka Umunna]

I will be as brief as I can. I rise to speak in support of new clause 6 on the legal standing of article 50. I voted in the last Parliament to invoke article 50 because I believed it was the duty of the House to seek to deliver Brexit in the form in which it was sold to the British people, but it was conditional on it being in that form. I said that if it turned out to be materially different at the end of the process, the people would be entitled to keep an open mind on what should then happen. By that I meant they were entitled to halt the process and revoke the article 50 notification given by the Prime Minister to the President of the European Council, if that was what the people decided to do.

The core purpose of new clause 6 is to clear up this matter. On the issue of revocability—halting the process or extending article 50—Ministers have sought deliberately to pull the wool over the eyes not just of this House but of the people. They have given the misleading impression that legally we are not free to keep an open mind and that we cannot revoke article 50 if we so wish. For example, on 9 October 2017, when my right hon. Friend the Member for Exeter (Mr Bradshaw) asked the Prime Minister if it was possible to halt the article 50 process, she implied that it was not and said:

“The position was made clear in a case that went through the Supreme Court in relation to article 50.”—[Official Report, 9 October 2017; Vol. 629, c. 51.]

But it was not. The case she was referring to was brought by Gina Miller to stop this Government seeking to take back control for Ministers instead of for Parliament, as was intended.

The Prime Minster was pressed again on the same day by my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) and my hon. Friend the Member for Nottingham East (Mr Leslie) and each time gave a similar response. This gave a completely false impression of the reality, because what she said was not factually correct. The Supreme Court did not and has not opined on this issue in the Miller or any other case before it, though the author of article 50, the noble Lord Kerr, has made it clear that it may be revoked.

[Mr Grieve]

It is abundantly clear that the matter has not been determined by the Supreme Court. The Government chose in the Miller case—for understandable reasons—to put forward the proposition that it could not be revoked, and both sides asked the Court to proceed on that assumption. It did not opine on the matter.

[Chuka Umunna]

The right hon. and learned Gentleman is quite right.

The Brexit Minister in the House of Lords, Lord Callanan, repeated this false claim when asked by a Conservative colleague whether he could confirm that the judgement in the Miller case had in ruled in “precise terms” on the revocability of article 50. He replied, “I can confirm that” and went on to say that the European Commission had said that once invoked, article 50 was irrevocable. He was forced 10 days later to return to the other place to come clean on the reality of the legal position, which was of course that the Supreme Court had said no such thing. Indeed, the European Commission is clear that article 50 can legally be revoked, and politically no member state has indicated that it would object to this.

Last week, the Government received legal advice from three Queen’s counsels, Jessica Simor, Marie Demetriou and Tim Ward, all of whom are on the Attorney General’s A panel of counsel and represent the United Kingdom. They have provided the Government with a published legal opinion confirming that article 50 is revocable. On the political side, the President and vice-president of the European Commission and the President of the European Council have made it clear that if this country wishes to change its mind at the end of the process, it will be free to do so. The British people deserve to know that; our constituents deserve to know it. The Government should publish that legal opinion, which is why new clause 6 must be passed.

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[Mr Baker]

The situation is set out in detail in the written ministerial statement that we laid. Both Houses will have meaningful votes on whether to accept the agreement. It is my expectation that we would not ratify before that primary legislation has gone through.

New clause 1 was tabled by the Labour Front-Bench team. It seeks to place limitations on the use of existing and future powers to amend and modify retained EU law. It is absolutely right and necessary for existing domestic powers granted by Parliament in other Acts and any future delegated powers created after exit day to be able to operate effectively and without inappropriate fetter within UK domestic law after our departure from the EU. This includes parts of our existing domestic law which will become retained EU law after exit day, as well as retained direct EU legislation which will be converted into our domestic statute book.

The Bill’s current approach to existing and future delegated powers aims to ensure the successful operation of retained EU law within our domestic statute book beyond the time limits for the Bill’s more limited specific powers. Adopting the new clause, on the other hand, would undermine the position of certainty and have several detrimental effects that would risk creating significant confusion in the UK statute book. First, limiting the modification of retained EU law by existing and future delegated powers only to when this is necessary

“to maintain or enhance rights and protections”

could have uncertain consequences. A test of necessity would impose a high burden that may prevent powers from being used in the most appropriate and relevant way if the regulations they create are not deemed truly necessary for the protection of rights. That could mean that existing and future delegated powers would be unable to amend or modify irrelevant or unsuitable parts of the statute book, leading to ossification of parts of retained EU law within UK domestic law and creating confusion and uncertainty.

Secondly, a restriction of that nature inevitably will increase the possibility of legal challenge against any use of these delegated powers. That would create needless uncertainty for businesses and individuals and risk holes emerging within the domestic statute book. Finally, the measure would also impose significant consultation requirements on the exercise of the delegated powers, the use of which is running against the clock. I understand and support the intention to ensure that all relevant stakeholders, as well as the general public, are aware of the situation and can engage as new legislation is developed. However, the blanket approach suggested under the new clause would be excessively and needlessly onerous. It would risk delays to the implementation of important changes.

In using both existing delegated powers and those created in the future, the Government will, of course, remain bound by the rules and procedures laid out in the parent Act, as well as the accepted statutory instrument processes. I will take this moment to say that I am proud of what we have done to clause 7 to make sure that we have contained the list of deficiencies while making sure that it is amendable through the affirmative procedure.

Turning to new clause 22, I think that I satisfied my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) earlier in the debate, but he is not in the Chamber so, if the House will allow me, I will move on to new clauses 14 and 15—

[Mr Grieve]

May I take the Minister back to clause 7 and thank him very much for the approach that he took in the negotiations?

[Mr Baker]

I am extremely grateful to my right hon. and learned Friend, and pay tribute to him. Although I have occasionally disagreed with him, he has, of course, made a historic contribution to the passage of the Bill. I am very grateful for the way in which he has helped us to improve the legislation.

Labour’s amendment 2 would restrict the scope of the clause 7 power. Labour appears to accept the principle that the power is essential if the UK is to exit the EU with certainty, continuity, control and a working statute book, but restricting the power in the way proposed in amendment 2 would risk compromising our ability to ensure that that statute book continues to function, thereby leaving gaps in our law, and creating uncertainty and confusion for businesses and individuals.

As we have explained previously, making the list of deficiencies in clause 7(2) exhaustive and immutable would risk omitting important deficiencies, preventing us from fully correcting the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation: technical detail, readability, incompleteness and, crucially, the management of time. We cannot risk undermining laws on which businesses and individuals—often unknowingly—rely every day.

As my right hon. Friend the Chancellor of the Duchy of Lancaster set out yesterday, the word “appropriate” was chosen carefully to ensure that the Government have the discretion called for by this unique situation. The constraints that a test of necessity would impose would prevent the Government and the devolved Administrations from making the best corrections to ensure that the statute book continues to function properly. A provision of necessity would risk limiting the Government and the devolved Administrations to only the most minimal changes, regardless of whether that would leave the law deficient, create absurd outcomes, or change the outcomes that the legislation was intended to deliver. I cannot believe that any Member would want to risk leaving the statute book in such a state. I am very conscious that we are now in a position whereby either these instruments will be brought forward under the affirmative procedure or, if they are brought forward under the negative procedure, the sifting committee will have the opportunity to push us towards that affirmative procedure.

Amendment 2 and new clause 15 seek to prevent regression in the protection of rights and equalities as we leave the EU, and new clause 14 seeks to do similarly by maintaining equivalence with the EU. The UK already has strong protections for equalities and human rights as part of our domestic provisions, independent of our membership of the EU. Some of those predate or go beyond EU requirements. The Government are committed to protecting our equalities legislation as we leave the EU. As we set out in the paper that we published on equalities legislation, limited technical amendments will be needed to ensure that all relevant legislation continues to operate as intended by Parliament after exit.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[Mr Leslie]

I have been vexed and exercised for quite a long part of the past 40 years, but that is my problem. The hon. Gentleman should know that as we go forward we are creating a new type of legislation. It is true that many of the European directives and regulations have been adopted over the years in different ways, but we are now importing this great body of EU retained law. It is going to affect him and his constituents, as well as my constituents. The first point to make is: can we understand what it is? That provides a useful opportunity in this exercise—

[Mr Dominic Grieve (Beaconsfield) (Con)]

The hon. Gentleman may agree with me that if there are deficiencies in the way EU law has been imported into our law, the last thing we want to do is to perpetuate them by keeping the uncertainties after we have gone. Yet schedule 5 raises a number of uncertainties, which this House would do well to address.

[Mr Leslie]

We are doing our duty by at least trying to comb over these issues now.

I wish to commend the Labour Front-Bench team on their amendment 348, which seeks to ensure that impact assessments are made properly and thoroughly before we take many of the decisions in this whole Brexit process. We already know enough about what has happened with the Brexit Secretary promising impact assessments and their turning out to be sectoral analyses. Many of us will have gone to the reading room and looked at the hastily written 50-odd documents, which would be good if someone was writing a master’s degree dissertation on the aviation sector—they are full of facts and information—but do not really provide much more analysis than people can already get off Google.

Where we did get an insight, although it may have been a slip of the tongue, was when the Chancellor of the Exchequer appeared before the Treasury Committee on 6 December and said that he has

“modelled and analysed a wide range of potential alternative structures between the European Union and the United Kingdom”

and that

“it informs…our negotiating position”.

So obviously there does exist within government some level of impact assessment and analysis that has not yet been placed in the public domain. It might be that the Brexit Committee wishes to explore that further or that the Treasury Committee wishes to do so, but it is important that we know whether this is simply a reference to the pre-referendum work that was done under the former Chancellor George Osborne or whether further assessments have taken place, independently undertaken by the Treasury. We need to know what analysis the different Departments have undertaken and what sort of modelling on the different sectors of our economy has been done.

--- Later in debate ---

[Mr Leslie]

That is the level of analysis and assessment that deserves to be shared and that was not available to the public prior to the referendum. It should not be dismissed but made more widely available. Members, and beyond them voters, can weigh up the different opinions. Some Members might rubbish representatives of the steel sector and say, “What do they know? I know better,” but we can weigh these things up and bring them into balance. We have the opportunity to debate transparency. Let us allow sunlight to flood over this issue and make sure that we are better informed going forward than we were before the referendum.

[Mr Grieve]

It is a pleasure to participate in the Committee’s consideration of schedule 5 and clause 13, although the reality is that the clause says very little and the schedule says a great deal.

As we have just heard, part 1 of schedule 5 provides for the publication of retained direct EU legislation by the Queen’s printer, which should be completely uncontroversial because its purpose is to promote transparency and access so that people in the United Kingdom can know what the law is. That is not some slight matter. One of the points that has been gently canvassed in the debate so far is the extent to which EU law may have created, in the way it has been brought into UK law, a degree of uncertainty as to what it is, in which case that is the last thing we should retain when we carry out this retention of the law. One of the central principles of the rule of law is that the law must be

“accessible…intelligible, clear and predictable”.

That is one of Lord Bingham’s principles of the rule of law, and it should matter to the House very much with respect to how it legislates. People need to be able to understand what activity is prohibited and therefore discouraged, and what their rights are so that they are able to claim whatever rights they have.

The interesting thing about part 1 of schedule 5 is that paragraph 2 empowers Ministers to make exceptions to the duty to publish retained direct EU legislation by

“giving a direction to the Queen’s printer specifying the instrument or category of instruments that are excepted.”

There appear to be no limitations on that power and no guidance on when such instruction might or might not be appropriate. My first question to my colleagues on the Treasury Bench, and particularly my hon. and learned Friend the Solicitor General, is: what is the Government’s intention in respect of that exception? Why is it there—we need to understand why it has been included in the Bill—and how will it be used in practice? It seems to me that it is desirable that the entirety of retained direct EU legislation should be made available through the Queen’s printer, so what is the intention as to the circumstances in which a Minister might remove himself from the duty and give a different direction? There is, perhaps slightly to my regret, no amendment to address that question—had I focused on it slightly better at an earlier stage and not been diverted by other matters, I might have tried to tease it out by tabling an amendment—but as we are also debating whether the clause and schedule should stand part of the Bill, it is important that we give the matter some consideration. Indeed, it ties in exactly with what the hon. Member for Nottingham East (Mr Leslie) said in introducing new clause 21, which is on exactly the same principle or philosophical issue of providing certainty.

My second question is about part 2 of schedule 5, which provides for Ministers by regulations to enable or require judicial notice to be taken of retained EU law or EU law. There are no limitations whatsoever on this delegated legislative power to enable or require judicial notice to be taken and, as far as I can see, nor are there any provisions to require that a Minister can make such regulations only under certain circumstances—for example, regulatory harmonisation might be a legitimate reason for making such regulations. This is a classic Henry VIII power, as paragraph 4(3) provides total Henry VIII powers, and is only limited, under paragraph 4(4), to primary legislation made or passed before the end of the Session in which this Bill is passed.

All that takes me back to an interesting debate the Committee had on a previous day—which one has rather faded out of my memory—in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I raised our continuing concerns about the judiciary having a lack of clarity about how they were supposed to interpret and apply retained EU law. Lord Neuberger and Lady Hale have expressed concern that the Bill is insufficiently clear about how retained EU law should be interpreted by the courts post exit. Lord Neuberger in particular was concerned by the prospect of the courts having to determine questions of regulatory harmonisation against divergence between UK and EU law—an essentially political topic, with possible economic consequences to the interpretation. As it happens, regulations made under part 2 of schedule 5 might address the judiciary’s anxiety about the need for better guidance on retained EU law, but what troubles me is that this provision again subtly sidelines Parliament from any role in providing guidance, as it is a matter of Executive discretion.

I must say to my hon. and learned Friend the Solicitor General, and to my other colleagues on the Treasury Bench, that I do understand the Government’s difficulties. The whole Bill is about an accretion of power to a Government who do not really know how they are going to have to use that power and are fearful that something will come up that will require them to act swiftly, and who therefore think that they have to maximise the tools at their disposal.

Forgive my repeating this—I think that the Bill has been quite well improved as it has gone through the House and, indeed, some of the assurances that have been given will lead to further improvements, I have no doubt, on Report—but it was this sort of thing that made me describe the Bill as a monstrosity on Second Reading. It is so contrary to the normal way in which one would expect to legislate for Parliament both to grant the powers that a Government need, including, where necessary, powers of secondary legislation, and at the same time to make sure that these cannot run out of control. On the plain face of the Bill, this is really one of the immense Henry VIII powers. The Government have decided to resolve this issue by taking a very big sledgehammer to the normal structures.

[Anna Soubry (Broxtowe) (Con)]

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

[Mr Grieve]

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

[John Redwood]

rose—

[Mr Grieve]

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

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

[John Redwood]

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

[Mr Grieve]

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

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

[Mr Jenkin]

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

[Mr Grieve]

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

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

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

[Mr Jenkin]

Give us an example.

[Mr Grieve]

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

[Wera Hobhouse (Bath) (LD)]

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

[Mr Grieve]

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

[Mr Jenkin]

In secret.

[Mr Grieve]

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

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[Mr Duncan Smith]

rose—

[Mr Grieve]

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

[Lady Hermon]

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

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

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

[Mr Grieve]

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

[Mr Duncan Smith]

rose—

[Mr Grieve]

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

[Mr Duncan Smith]

Just for a second.

[Mr Grieve]

All right, I will give way.

[Mr Duncan Smith]

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

[Mr Grieve]

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

[Mike Gapes]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

All right, but this is the last one.

[Mike Gapes]

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

[Mr Grieve]

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

[Paul Blomfield (Sheffield Central) (Lab)]

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

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

--- Later in debate ---

[Mr Rees-Mogg]

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

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

[Mr Grieve]

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

[Mr Rees-Mogg]

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

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

--- Later in debate ---

[Joanna Cherry]

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

[Mr Grieve]

indicated assent.

--- Later in debate ---

[The Solicitor General]

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

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

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

--- Later in debate ---

[The Solicitor General]

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

--- Later in debate ---

[Sir Oliver Letwin]

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

[Mr Grieve]

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

[Sir Oliver Letwin]

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

--- Later in debate ---

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

[Mr Grieve]

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

[Tom Brake]

Will the right hon. and learned Gentleman give way?

[Mr Grieve]

I will give way in a moment.

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

[Tom Brake]

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

[Mr Grieve]

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

[Mr Kenneth Clarke]

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

[Mr Grieve]

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

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

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

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

[George Freeman (Mid Norfolk) (Con)]

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

[Mr Grieve]

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

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

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

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

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

[Stephen Gethins]

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

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

--- Later in debate ---

[Mr Baker]

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

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

[Mr Grieve]

Will the Minister give way?

[Mr Baker]

I did want to make a serious point.

[Mr Grieve]

This is a serious point.

[Mr Baker]

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

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

[Mr Grieve]

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

[Mr Baker]

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

--- Later in debate ---

[Mr Baker]

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

[Mr Grieve]

indicated assent.

[Mr Baker]

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

--- Later in debate ---

[Mr Baker]

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

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

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

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

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

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

[Mr Grieve]

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

[Mr Baker]

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

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

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

--- Later in debate ---

[Mr Baker]

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

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

[Mr Grieve]

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

[Mr Baker]

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

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[Mr Leslie]

It is touching that the right hon. Gentleman takes those assurances from Ministers at face value, but the Ministers may not be here for very much longer. Who knows? If we are going to make policy changes, that should be done in a Bill that comes before Parliament, or in a statutory instrument subject to affirmative resolution.

I now invite Members to pick up their copies of the Bill, because I want to deal with a couple of provisions in clause 7 which I think contradict the understanding of the right hon. Member for Wokingham (John Redwood) of the scope of the order-making powers that are being taken. It is, in fact, fairly wide. Clause 7(4) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament.”

In other words, a provision in a statutory instrument could have the same effect as one in primary legislation.

[Mr Dominic Grieve (Beaconsfield) (Con)]

When statutes are being considered and Bills are being drafted, there does on occasion come a point at which we must accept that assurances given, for example, at the Dispatch Box will have to complement the inevitable small grey areas. However, that should not prevent us as a Parliament from scrutinising legislation and insisting that, so far as possible, it is drafted in conformity with the purpose for which the Government say that they intend to use it.

[Mr Leslie]

That is why Members often say in the House, “Let us place it on the face of the Bill”, which means “Let us put in writing, in black and white, something that can then be held up in a court of law”, rather than a mere verbal promise from a Minister who, as I have said, could be here today and gone tomorrow. These things matter, and if we are to do our job properly we need to get our statute right.

It is not an exaggeration that clause 7(4) represents a massive potential transfer of legislative competence from Parliament to Government. It is a sweeping power that would make Henry VIII blush if he were to see it today. My amendment 57 would delete the sweeping nature of clause 7(4), because Ministers have not ensured that their powers are as limited as possible; on the contrary, they have ensured that they are as exceptionally wide as possible.

--- Later in debate ---

[Mr Grieve]

Does the hon. Gentleman agree that those who draft legislation go off to Government Departments, show the draft and ask whether that covers all the things that need to be covered, and are then inevitably told that the Department is worried that something has not been covered? Perhaps this should be an encouragement to those on the Treasury Bench to go away and think again about whether the list they have produced is not in reality exhaustive. If it is not, perhaps they would like to identify during today’s debate where they think there might be these extra powers that take them beyond the limits they have listed.

[Mr Leslie]

The right hon. and learned Gentleman and any other Member who has had the privilege of serving as a Minister will know exactly what civil servants will advise, which is, “Well, you don’t know the exact circumstances, so seek as wide a power as you can possibly get away with through Parliament, if it will turn a blind eye to it. We can deal with the consequences thereafter.”

Unfortunately for them, Ministers will not be able to get away with that on this occasion, because we have spotted this land grab attempt. It is not appropriate; if they feel that there should be exceptions or that certain circumstances should be accounted for, those must be set out in the Bill, not just left in these current loose terms.

Current Ministers might feel that they are responsible stewards of Government, but I invite hon. Members to imagine circumstances in which we end up with a malign Government of some sort, shape or variety, such as some sort of extreme Administration—who knows what might happen in years to come? These Henry VIII powers are extremely sweeping. They will be available to Ministers in years to come and could leave the door open to some quite arbitrary near-autocratic actions of a future Government.

For example, if a future Government sought to lift the 48-hour working week provisions that EU law currently gives to employees in this country, Ministers would by order potentially have the scope to do that under the powers in clauses 7 and 9. If Ministers wanted to require the banking sector to have more capital requirements under these provisions, they would be able to simply make those orders. If Ministers wanted some sort of aggressive or inappropriate state intervention to distort competition, favouring one producer over others, they would be able to do that through the provisions on these order-making powers.

--- Later in debate ---

[John Redwood]

I am glad we agree about that. I am trying to make a helpful suggestion for the future on this issue and a wider issue to which we need to return at some point. We need a system that establishes parliamentary control—as I have explained, all the methods we are discussing today are parliamentary control of one form or another—but we may need to think about how we improve processes for the future when that control is a statutory instrument.

[Mr Grieve]

My right hon. Friend is making some important points. If I may say, I have signed up to the amendments tabled by the Procedure Committee because they are a reasonable compromise, but they are most deficient in the absence of a revision mechanism to ask a Minister to reconsider. My right hon. Friend may agree that, even at this stage, those on the Treasury Bench could go away, reconsider the issue and bring a further amendment forward on Report to deal with it.

[John Redwood]

That may be hanging a bit too much on this piece of legislation. I think this is a wider issue, which Parliament may need to consider, so I was not going that far in my recommendation. However, Ministers would be well advised, if by any chance they did make a mistake in a draft instrument, not to do what the previous Government did and just drive it through, but to accept that they needed to withdraw it and to come back with a corrected version, which would make for better order.

The Bill as drafted, with the amendments to provide a process to make the task of parliamentary scrutiny manageable, is a perfectly sensible package, and I look forward to hearing sensible promises from Ministers on the Front Bench, who I am sure will want to exercise these powers diligently and democratically.

--- Later in debate ---

In conclusion, this is simply about Parliament standing up for itself and ensuring that it does its job: scrutinising the Executive and ensuring that when we give them powers—of course, we do need to do so in the proper circumstances—we ensure that we put the right safeguards in place, the right checks and balances, as we have an historic obligation to do. It simply means that we do not believe that this should be done through a concentration of powers, and we think that these powers should be used only when they are needed.

[Mr Grieve]

It is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper). I draw the Committee’s attention to my new clause 82 and amendments 15, 1, 388, 5, 2, 389, 16, 13, 3, 4 and 12. I apologise to the Committee for so burdening the amendment paper this afternoon, but that simply reflects the importance of clause 7 and the fact that, while there are many important aspects to the Bill, clause 7 and the powers that the Government intend to take in order to deal with deficiencies arising from the UK’s withdrawal are so controversial.

I remember a long time ago, when I was newly elected to this place, listening to a debate in which an Opposition Back Bencher, also newly elected, asked why we have Second Reading debates at all, because, in view of the size of the Government majority, they were bound to be a foregone conclusion. She suggested, as I recollect, that in the circumstances Second Reading should be merely formal and that we should move straight on to the Committee stage. The issue before us today touches directly on what was said then, because it is not only a question of parliamentary sovereignty that is at stake, and the extent to which we want to hand over power to the Executive; it is also a question of whether we want to maintain the rule of law by good governance. This House, not without good reason, has over time evolved processes and procedures that present the Government with hurdles when it comes to the enactment of primary legislation. We take Bills through Second Reading, Committee, Report and Third Reading precisely because we, and our forebears in this place, have come to understand that that is the way, by a process of debate through which we moderate each other’s ideas, we are likely to achieve the most sensible outcome. Indeed, we have been doing that consistently. I praise the Government for the time they have given us to do precisely that on the Bill.

However, that is the very reason why we should be so cautious when the Government ask us to change the rulebook, for what are undoubtedly primary legislative changes, to give them the power to bring about all those changes by statutory instrument. It may be that statutory instruments can be debated—although in many cases, as we know, they are not—but the fact remains that the process of debate, particularly if it touches on matters of importance, is likely to be incomplete and unsatisfactory. My right hon. Friend the Member for Wokingham (John Redwood) so tellingly made the point about the deficiencies of our statutory instrument system in relation to not being able to ask Ministers to go away to consider the deficiencies—if I may hijack that word—in their own proposals.

That is why I have found clause 7 particularly difficult in the context of being able to support the Government. There are two ways in which the challenges of clause 7 can be met. The first is to improve the scrutiny process by which the House goes about its business. The second, as has been suggested by the numerous amendments I shall come back to in a moment, is to try to restrict the scope of the powers the Government have taken, or at the very least to get the Government during the course of the passage of the Bill to justify each and every one of them.

On the scrutiny process, the Government have moved. I tabled amendment 3, which appears on the selection list for debate this afternoon, because I went to the Hansard Society, as I am sure other hon. Members did, and got its assistance in looking at ways in which our scrutiny processes might be improved. Amendment 3 and the consequential amendments derived from it came from that exercise. I have to say to the Minister—I again endorse my right hon. Friend the Member for Wokingham; I am sorry he is not in his place to hear my eulogy of him—that we very badly need a total reform of our statutory instrument system. It is deficient in a whole range of matters. The Bill provides a possible opportunity on how we might make a significant change: providing a proper triage mechanism, giving the House a degree of control over the process, allowing for a dialogue between the House and the Minister, and still enabling statutory instruments to be enacted.

The Government, who I appreciate are under a lot of pressure over a whole range of matters, in particular the word “time”—which I think Monsieur Barnier keeps on repeating, but it is a matter with which we all in this House have to concern ourselves—have been reluctant to do that. In has stepped my hon. Friend the Member for Broxbourne (Mr Walker) to tell us that he has a different way of approaching this. Looking at the Procedure Committee’s proposals, I am impressed by what his Committee has achieved. I continue to have some reservations about some aspects, in particular the point highlighted by my right hon. Friend the Member for Wokingham on the inability to engage in preliminary dialogue and to ask for revision, but for the purpose of dealing with the avalanche of statutory instruments about to come in our direction the amendment that has been tabled will enable the House to do its job properly.

Much is going to depend—I hesitate to say this, because in this House we are all equal—on the Government’s common sense on how those who are to be appointed to the Committee are chosen. There are plenty of Members on all sides who have a keen understanding of what a statutory instrument is, a keen understanding of how it should work and an ability to sniff out when it is being misused. It is those individuals, if I may say so to my hon. Friends and to the Whips on the Government Front Bench, who ought to be appointed. Without that, a committee will have no credibility at all. I appreciate that we will have to move on to consider Standing Orders. If we do this properly and with good will on all sides, my assessment is that the Government will be helped.

--- Later in debate ---

[Mr Jenkin]

May I take it therefore that my right hon. and learned Friend is offering his services on this committee?

[Mr Grieve]

I am already the Chairman of another Committee of Parliament, and I think it might be undesirable to burden me with extra work. Indeed, there are plenty of other people in this House who are capable of doing this work. Obviously, if somebody wanted to ask me, I would give it consideration, but I am always conscious of being rather too thinly spread as it is, so I do not put myself forward.

[Tom Brake]

Can the right hon. and learned Gentleman set out how he thinks the process of scrutiny will be improved for outside organisations? Many of them feel that they are excluded from this process.

[Mr Grieve]

Such organisations can be summoned before the new Select Committee. They can come along and provide input to the committee on anything that has been tabled; that has been my understanding of how it would work and, indeed, my hon. Friend the Member for Broxbourne, sitting to my right, has just confirmed that. There is a mechanism here. Obviously, to come back to the point I made earlier, this depends on the quality of the committee and shows why it will be so important. It also comes back to the Procedure Committee and how it works. For all those reasons, I think that this is a workable arrangement.

[Vicky Ford (Chelmsford) (Con)]

On the quality of the committee and the scrutiny process, the committee will be scrutinising changes to detailed pieces of European legislation. In my experience, in other countries’ Parliaments, an expert committee often does the scrutiny. So financial experts would consider a piece of finance legislation; environmental legislation would be considered by environment experts; and a judicial piece of legislation might be considered by those involved with their justice committee. Does he agree that it would be sensible to include Members with expertise in the underlying legislation, as well as in British legal practice, on the committee?

[Mr Grieve]

That would be a very sensible course of action. As I say, the burden is on the Government to show some common sense and inventiveness in how they approach this. My understanding is also that, as was mentioned earlier, the committee will not have a Government majority—

[Mary Creagh]

Eight and eight.

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

[Mr Grieve]

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

[Mr Cox]

More often.

[Mr Grieve]

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.

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[Mr Baker]

I will come back to that later, but I can tell the hon. Gentleman for a start that the translation functions of the European Union and various institutions will no longer be required.

I come now to amendment 1, from my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It has support from all sides of the Committee including, I do not mind telling him, from me, in spirit. The Secretary of State has asked me to put on record that he, too, is sympathetic to the idea of narrowing the Ministers’ discretion. My right hon. and learned Friend seeks to restrict the power of Ministers to make regulations to amend retained EU law to cases where the EU law is deficient only in the way set out in the Bill.

We have listened carefully to my right hon. and learned Friend, my hon. Friend the Member for Weston-super-Mare (John Penrose) and others, and the specific proposal in amendment 1 and amendment 56, tabled by the hon. Member for Nottingham East, is to convert the illustrative list of potential deficiencies in the law in clause 7(2) to an exhaustive list. As my right hon. and learned Friend knows, we do not think that it is possible to do that at this stage.

We know that there will be thousands of deficiencies across our statute book and it is impossible at this stage definitively to list all the different kinds of deficiencies that might arise on exit day. To attempt to do so risks requiring significant volumes of further primary legislation on issues that will not warrant taking up parliamentary time. The specifics of the deficiencies will inevitably vary between cases and it will therefore not be possible to provide a definition that accompanies them all, as amendments 264 and 265, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), also seek to do. An exhaustive list would risk omitting important deficiencies, so rendering the powers in clause 7 unable to rectify the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation, such as technical detail, readability and, crucially, the management of time.

We cannot risk undermining the laws on which businesses and individuals rely every day. Our goals are to exit the EU with certainty, continuity and control. However, I listened extremely carefully to the speech made by my right hon. and learned Friend the Member for Beaconsfield, my constituency neighbour, and to his appeal for us properly to consider this issue. I hope that he will not mind my saying that I think that we have already properly considered the issue, but we are perfectly willing to work with him and others to continue to reflect on this point with an eye on Report. We heard a very informative intervention on this point from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). My right hon. and learned Friend will know that we are wrestling with the susceptibility of what we do to judicial review, which might undermine the certainty that we are trying to deliver.

[Mr Grieve]

I understand that, and I realise that I am setting a bit of a challenge. Of course, amendment 1 is only one way to deal with this. Interestingly, amendment 1 is the least justiciable route because of its clarity. Other amendments, such as amendment 2, do raise the issue of justiciability. One way or the other—I put this challenge to my hon. Friend—the Government will have to come back with something that tempers the starkness of these powers. I leave it to my hon. Friend’s discretion, which is precisely why I have not tried to fetter him over this.

[Mr Baker]

I am grateful to my right hon. and learned Friend for that intervention.

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[Mr Baker]

I will be very straightforward with my hon. Friend: we are keen to move on this issue, but, as several hon. and learned Friends have acknowledged, it is a tricky issue, so we will need to reflect further on how a movement might take place. The Attorney General, who is in his place, and the other Law Officers are well aware of this issue, but we are conscious of the imperative of being able to deal with deficiencies in the statute book, as well as of the advice of hon. and learned Friends.

[Mr Grieve]

I am sure that the Minister will deal with this on some of the other amendments, but the other limb of this is whether certain categories of retained EU law need special protection. All that, I suggest, needs to be looked at as a whole. I am convinced that if the Government do that, they will probably be able to come up with the right solution, and one that commands the confidence of the House.

[Mr Baker]

I will come to that a little later, but I hope that my right hon. and learned Friend will allow me to move forward.

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[Mr Baker]

I think that my hon. Friend has made a strong case for her membership of the sifting committee. I hope that, if the Whips Office has heard her appeal, she will become a member in due course and will enjoy it very much indeed.

Let me now deal with amendment 2. Conditions similar to those in the amendment, tabled by my right hon. and learned Friend the Member for Beaconsfield, are proposed by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in amendment 48. Again, we have significant sympathy with the intention behind the amendments. However, they would introduce new terms into the law and invite substantial litigation, with consequent uncertainty about the meaning of the law as we exit the EU.

[Mr Grieve]

Will my hon. Friend give way?

[Mr Baker]

May I just finish making my case? I must point out to my right hon. and learned Friend that I can speak for two or three hours if I take all the interventions, or I can press on.

I hope to give the Committee some reassurance. Any provision made under clause 7 must be an appropriate means of correcting a deficiency in retained EU law arising from withdrawal. It is a strong test, and it represents a significant limit on the provisions made under clause 7. The limit can ultimately be guarded by the courts, although I note what my right hon. and learned Friend said about that. However, the right place in which to determine which changes in the law are appropriate is Parliament, which is why I hope Members will accept that their concerns have been addressed by the provisions that we have made for greater scrutiny and transparency in the case of each statutory instrument.

[Mr Grieve]

I have noted my hon. Friend’s comments, and I appreciate them, but may I take him back for a moment? All these issues are linked. I acknowledge the contribution from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but let me return to the discussion of amendment 1. One possibility might be that the list could only be added to by a statutory instrument. After all, given the extensive powers in the Bill, it would present a double lock. If the Government wanted a new power, or area of power, they could secure it through an SI anyway, because of the extent of the power that we are giving to them. The Minister might like to consider that point.

[Mr Baker]

I shall return to the clause 7 versus clause 9 argument a little later.

Amendments 3 and 4 were also tabled by my right hon. and learned Friend. The Government agree with his goal of ensuring that instruments under the Bill are accompanied by all the information that the House, the public and, indeed, the sifting committee need in order to understand what they can do and why. We also agree that more can be done to ensure that the House has the proper opportunities to scrutinise the instruments. As I have said, the Government have therefore accepted the amendments tabled by my hon. Friend the Member for Broxbourne, and we will also table amendments to address long-standing concerns about information. The Government believe that the proposed committee represents an option that balances our concerns about the ability to plan and the limited time available before exit day with some Members’ well-stated and long-standing concerns about the efficacy of the scrutiny of negative SIs in this House. Those amendments will address the unique challenge posed by the secondary legislation under this Bill, ensuring that the Government’s reasoning on procedure is transparent to the House and that the House can recommend that any negative instrument should instead be an affirmative one.

Beyond all that, the Government have tabled amendment 391 which will require that explanatory memorandums are alongside each SI and include a number of specific statements aimed at ensuring the transparency of SIs that are to come, and act as an aid to this House, providing more effective scrutiny. These statements will explain, for instruments made under the main powers in this Bill, what any relevant EU law did before exit day, what is being changed, and why the Minister considers that this is no more than is appropriate. They will also contain information regarding the impact of the instrument on equalities legislation. The wording of our amendment and that of my hon. Friend the Member for Broxbourne differs from that proposed by my right hon. and learned Friend the Member for Beaconsfield, but, as he has said, he has put his name to it and I am pleased that we are therefore able to move forward.

I turn now to the issue of what is necessary and amendments 49, 65, 205 to 208, 216 and new clause 24. Amendments 49 and 65 bring us to the important debate about whether the power in clause 7 should allow necessary corrections or appropriate corrections. “Necessary” is a very strict test, which we would expect to be interpreted by a court as logically essential. Where two or more choices as to how to correct EU law are available to Ministers, arguably neither would be logically essential because there would be an alternative. Ministers therefore need to choose the most appropriate course. If two UK agencies, such as the Bank of England or the Financial Conduct Authority, could arguably carry out a particular function, the Government must propose which would be the more appropriate choice. Also, if the UK and the EU do not agree to retain an existing reciprocal arrangement and the EU therefore ceases to fulfil its side of the obligations, the UK could decide it is not appropriate for the UK to provide one-sided entitlements to the EU27; it might not be legally necessary for the UK to stop upholding one side of the obligation, but it might not be appropriate for us to continue if the EU is not doing so.

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Amending the power so that regulations made under it could not, for example, make provisions of constitutional significance or remove any necessary protection, would be vague and opaque. It would also generate considerable uncertainty and, potentially, unnecessary litigation, given the lack of definition and clarity as to what these terms mean in practice. Again, clause 9 needs to be both clear and flexible to enable us to implement the withdrawal agreement or those elements of it needed prior to exit day which it would not be possible to include in the withdrawal agreement and implementation Bill by virtue of the time available. I therefore urge my right hon. and learned Friend not to press his amendments to a vote.

[Mr Grieve]

I can understand the Minister’s point on timing, but the reality is that the terms of amendment 13 are ones with which the Government must be very familiar, as they appear in lots of other legislation. So I find this slightly difficult to follow.

[Mr Baker]

I am grateful to my right hon. and learned Friend for putting me right on that point, but I shall now have to press on rather than explore it. [Interruption.] I am not in a position to answer it, but I will see whether my memory can be jogged.

I turn to the issue of children’s rights, where I am grateful that I have the opportunity to discuss amendment 332 and new clause 53, which stands in the name of my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). I congratulate him on the powerful speech he made, reminding the House of its obligations. His new clause has received broad support across the House, including from my right hon. Friend the Member for Loughborough (Nicky Morgan), the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and the hon. Member for North Down (Lady Hermon), among others. This new clause and amendment 332, tabled by the hon. Member for Walthamstow (Stella Creasy), give me the opportunity to clarify our position on child refugee family reunion and asylum seekers.

The Government’s commitment to children’s rights and the United Nations convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU. Domestically, the rights and best interests of a child are already protected through the Children Act 1989 and the Adoption and Children Act 2002, in addition to other legislative measures across the UK. Existing laws and commitments already safeguard children’s rights.

The Government support the principle of family unity and we have in place a comprehensive framework so that families can be reunited safely. The Dublin regulation itself is not and has not been a family reunification route. It confers no right to remain in the UK on family grounds and there is no provision for children to apply for family reunification under it. Crucially, the Dublin regulation creates a two-way process that requires the co-operation of 31 other countries. We cannot declare that we are going to preserve its terms when we need the co-operation of other countries to make it work.

We understand our moral responsibility to those in need of international protection, and that will not change as we leave the European Union. We value co-operation with our European partners on asylum and we want that co-operation to continue, but the way to ensure that is through the negotiations, not by making changes to the Bill before we have been able to make progress on this matter. I am grateful to my hon. Friend the Member for East Worthing and Shoreham and those who support his new clause but, as he said, changes are required in immigration rules. I am grateful to him for his stating the probing nature of the new clause. I ask him to work with Ministers, whom I think he said he has now met, to deliver the right changes to the immigration rules.

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[Mr Baker]

I will not give way, because I need to make progress and to keep my remarks to some form of limit.

Amendments 15 and 16, tabled by my right hon. and learned Friend the Member for Beaconsfield, seek to narrow the categories of deficiencies arising from our withdrawal from the EU. The removal of clause 7(8), as amendment 16 proposes, would restrict our ability to keep the law functioning as it does now. Subsection (8) is about deficiencies arising not only from withdrawal, but from how the Bill works. For example, the Bill does not preserve directives themselves, as we have already debated, but instead preserves the UK law, which implements them. In some instances, there are provisions in directives, giving powers or placing restrictions on Government or on EU institutions or agencies, which it would not have made sense to transpose in UK law, but which then need to be incorporated in order for the law to continue to function as it did before exit. For example, the Commission currently holds a power to restrict the disclosure of confidential information in the financial services sector, which is referenced by UK implementation of the capital requirements directive 2013, but which will need to be transferred to the UK. We might also want to transfer powers that the Commission currently has to define what counts as hazardous waste, which is currently in the waste framework directive.

Subsection (8) allows the clause 7 power to correct deficiencies that arise from that withdrawal together with the operation of the Bill. For example, it might be appropriate to lift a relevant part of a directive and insert it into UK law in order to keep the law functioning as close as possible to how it does presently.

[Mr Grieve]

If I may say to the Minister, he has actually provided a totally coherent and helpful answer, which dealt with a probing amendment that I tabled. I am most grateful to him for it.

[Mr Baker]

Well, I am extremely grateful to my right hon. and learned Friend, who I am very happy to see does remain my friend, as well as my constituency neighbour. I cannot tell him how happy I am to discover that that is the case.

Earlier, my right hon. and learned Friend asked me why Government could not accept additional protections requirements in amendment 13, given that that appears in other legislation. A similar test does appear in the Legislative and Regulatory Reform Act 2006, but the powers in that Act are rarely used, in part because of its complicated requirements. Moreover, the detail of that Act and its powers justify such a test as it is about deregulation. We consider that the existing restrictions in clause 9 are the right ones.

I move forward to amendments 131, 269 to 271, and 359 on restriction of the powers relating to EU citizens’ rights. Since those amendments were tabled, we have secured much-needed agreement on citizens’ rights through our negotiations. I hope Members will be glad that we have now made sufficient progress, subject to the European Council meeting, and that we will be able to move forwards.

The final agreement with the European Union on citizens’ rights is still subject to our negotiations with the EU. However, of course, we expect to give effect to those in the withdrawal agreement and implementation Bill. The House will therefore have both a meaningful vote on the agreement and on its debates on the primary legislation necessary to implement it. I therefore invite hon. Members to withdraw their amendments.

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Conferring powers on public authorities to allow them to make provisions of a legislative character or other legislation can be an appropriate course of action, particularly where there is a need for specialised, technical rules to be developed, introduced and maintained by a body that has the necessary dedicated resource and expertise. There are good examples of where Parliament has already provided for this approach in the UK. Our financial regulators, the Prudential Regulation Authority and the Financial Conduct Authority, have been given the responsibility by Parliament of developing and making the detailed rules needed to ensure that financial services firms are stable and well managed and meet the needs of consumers. Of course, those regulators can exercise their rule-making powers only according to the policy set by Parliament.

[Mr Grieve]

My hon. Friend touches on an important issue. Might it not be the case that any such power done by regulation ought to be done by affirmative resolution? I just suggest that that might be the solution to dealing with tertiary powers, because of their unusual nature. In view of the list he has given us, it seems to me that, in all likelihood, these things would be done by affirmative resolution, but that is something the Government might like to consider between now and Report.

[Mr Baker]

I just draw my right hon. and learned Friend’s attention to paragraph 1(2)(c) of part 1 of schedule 7, which would require that the affirmative procedure be used if a provision

“provides for any function of an EU entity or public authority in a member State of making an instrument of a legislative character to be exercisable instead by a public authority in the United Kingdom”.

So instruments of a legislative character coming across would trigger the affirmative.

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[Mr Grieve]

I take it, therefore, that that covers all the points my hon. Friend has just raised at the Dispatch Box.

[Mr Baker]

There are also some matters in relation to fees and charges, which we discussed earlier in the debate. What I would say to my right hon. and learned Friend is that, where he has doubts, we have agreed to the sifting committee, and if he is concerned, I hope he will consider membership of that committee so that he can play his part in seeing through this set of measures.

European Union (Withdrawal) Bill

Dominic Grieve Excerpts

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

[Lady Hermon]

I am most grateful to the right hon. Gentleman—or the hon. Gentleman; I just promoted him. That is not what I understood, so there is no point in putting up a straw man for me to knock down. I understood that the proposal that the Prime Minister took with her to Brussels was always to have been that the entirety of the UK should have the same alignment. The Prime Minister is no one’s fool. She has made it quite clear that she will protect the integrity of the whole United Kingdom. She had already ruled out having a border down the Irish sea. I therefore believe and trust that when she went to Brussels, she had always planned that there would be convergence throughout the United Kingdom, and that Northern Ireland would not be treated differently from the rest of the United Kingdom. That is the confidence that I have.

[Mr Dominic Grieve (Beaconsfield) (Con)]

The hon. Lady may share with me a certain amount of bemusement. There can be no question for me, as a Unionist, of a separate regulatory arrangement for Northern Ireland, permitting it to have regulatory equivalence or convergence with the Republic. Convergence either applies to all of us, or cannot apply at all. I have to say that all of us having regulatory convergence with the Republic, and indeed the rest of the EU, strikes me as a very good idea.

[Lady Hermon]

I am grateful to my right hon. and learned Friend. Even though he sits on the other side of the Chamber, I have always regarded him as a friend. He has just summed up how I feel. I will not stand here and criticise our Prime Minister—she is the Prime Minister of the United Kingdom, and I believed that her stance when she went to Brussels on Monday was that the convergence would apply to all of the United Kingdom. I did not believe for one moment that she would cast Northern Ireland off somehow to a regulatory framework and convergence on the island of Ireland, and not with the rest of the United Kingdom.

Of course, I do not want Northern Ireland to be treated any differently from the rest of the United Kingdom. We are all coming out of the EU—sadly—on 29 March 2019. The referendum result in Northern Ireland was in favour of remaining, but the UK-wide result will be honoured. The Prime Minister has said that repeatedly. As we move towards that, I urge and encourage the Government to adopt, in some form of words, new clause 70, because the principles of the Good Friday agreement, which I and the other Members who have put their names to the new clause are proud to support, must be protected in black and white on the face of that Bill. That is the assurance I need from the Government this afternoon, otherwise I will test the House’s commitment to the Good Friday agreement.

[Mr Grieve]

I do not intend to speak at length. I listened carefully to the hon. Member for North Down (Lady Hermon) and I completely agree with all the sentiments she expressed about the benefits that the Good Friday agreement has conferred on our country generally and on our international relations with the Irish Republic. It has been a step change in improving the quality of life for all citizens in this country, particularly those in Northern Ireland, about which the hon. Lady spoke so eloquently.

It is clear that the Brexit process is challenging in the context of maintaining those benefits. I regret that, during the referendum campaign last year, those of us who highlighted the consequences that could flow did not get as much register as we would have liked. In the cost-benefit analysis between staying in and leaving the EU, the Good Friday agreement was a factor that should have been taken into account properly, but I regret to say that some of the enthusiasts for our leaving the EU seem to have systematically ignored it.

However, we are where we are. It is clear that we will have to try to manage the Brexit process in a way that does not adversely impact on the Good Friday agreement. I listened carefully to DUP Members, and I can well understand that any suggestion that leaving the EU involves uncoupling Northern Ireland and putting it into a separate regulatory regime for the benefit of maintaining the Good Friday agreement, or regulatory equivalence with the Republic of Ireland, is a complete non-starter. It is totally unacceptable to me, and I did not understand the Prime Minister’s words and the agreement she reached as being indicative of her intending to do any such thing. If she was, all I can say is that she will not long survive her party’s views, which are unanimous on this matter, irrespective of whether Members most enthusiastically embraced Brexit or most vigorously sought to prevent it. We therefore need to park that on one side.

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[Mr Grieve]

I have great sympathy with the approach of the hon. Member for North Down (Lady Hermon) in her anxiety about seeing the Good Friday agreement respected. That said, it is right that it is an international agreement and I have some difficulty seeing how that can easily be incorporated in a statute relating to another matter. It is either declaratory or it has some effect—one or the other. I simply say to my hon. Friend the Minister that this is an area where the Government may seek and need to provide reassurance, but whether the hon. Lady is right that it needs to be specific on the face of the legislation is, I think, more complex, because it raises as many problems as it may provide answers.

EU Exit Negotiations

Dominic Grieve Excerpts

Monday 13th November 2017 Commons Chamber

[Mr Davis]

I am stating Government policy from the Dispatch Box.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I greatly welcome my right hon. Friend’s statement in respect of there being a statute for us to implement the final deal, but if that is the case—unless my amendment were to be now accepted—it must be right that clause 9 becomes redundant. I do not see how it is acceptable that we should implement Brexit by means of clause 9 to have a statute after the date of our departure. My anxieties are greatly heightened by the extraordinary amendment tabled by the Government on Friday. If we run out of time, surely the answer is none of the suggestions that have been put forward; in fact, the answer is that the time has to be extended under article 50, so that all parties are able to deal with it. That is the mechanism provided, and surely that is the mechanism that the House and the Government should be following.

[Mr Davis]

I thank my right hon. and learned Friend for his welcome of the Bill, but the extension of article 50 can be done only by unanimity, and that is its weakness.

Leaving the EU: Parliamentary Vote

Dominic Grieve Excerpts

Thursday 26th October 2017 Commons Chamber

[Mr Davis]

I am afraid the right hon. and learned Gentleman altered the quotation from yesterday slightly. What the Chairman said, and I refer to exactly what he put to me, was that “it is possible”—possible—“that Parliament might not vote on the deal until after the end of March 2019. Am I summarising correctly what you said?” I said, “in the event we don’t do the deal until then.” That is the point I was making.

I will take up the right hon. and learned Gentleman’s point about the European Parliament, because I have said at the Dispatch Box and we have said that it is our intent and our expectation—those were the words used; I crafted them—that we will vote on this in this House before the European Parliament does. That stands. If it goes to the timetable that Mr Barnier expects, or wants to go to, which is October 2018, it is likely that the European Parliament will vote in December or January, under the normal processes that apply to that Parliament; it has a committee stage to go through first. We will vote on that and we will have it put before the House before then. There is no doubt about that. That undertaking is absolutely cast iron.

The issue that I raised yesterday, because I take it as a responsibility always to be as forthright and open as I can with the Select Committee, was to go through what has happened in the past in European Union treaty negotiations. This time, there is an expectation by the Commission; there is an incentive on the part of the various countries to get it done as quickly as possible; and there is our expectation and intention. None of the undertakings given at the Dispatch Box have in any sense been undermined. The issue here is one of practicality and what we control. What we control, we will run to give Parliament a proper and meaningful vote at the right time.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand my right hon. Friend’s concern about hypothetical situations that might arise at the end of the negotiation, but is not the reality that if the negotiation leads to an agreement, it will be necessary for not only the European Parliament but ourselves to act in accordance with our constitutional principles in deciding to approve it? The only way we can do that properly is by statute in this House. In those circumstances, is not it rather fanciful to imagine that, having reached a deal with the European Union, it would hold us in some strange way to ransom because we pointed out that we needed the time to enact the necessary statute? That flies in the face of reality. It would just tone down the debate a little and introduce a bit of rationality if we understood that our European Union partners would expect us to reach our own conclusion in accordance with our own constitutional requirements.

[Mr Davis]

My right hon. and learned Friend has a point. As I understand it, the reason why Mr Barnier wants to conclude the negotiations, including that element of article 50 that refers to the future arrangements, by October is to enable that ratification process to take place. In that respect, I agree with my right hon. and learned Friend.