European Union (Withdrawal) Bill

Oliver Letwin Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Mr Bone]

I think the hon. Gentleman would agree that if the affirmative mechanism were used, the whole House would vote on the matter, so I do not accept his argument.

This Bill is about a principle: I think it is called the European Union (Withdrawal) Bill, and I think I introduced—

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

Will my hon. Friend give way?

[Mr Bone]

Not for a moment, because on this particular point I think I am right: it is called the European Union (Withdrawal) Bill. I remember introducing a number of such Bills, or certainly speaking in favour of a lot of them. At that time, they were rather dismissed by the Government and we did not make much progress, so if I have an opportunity to support a Government Bill called the European Union (Withdrawal) Bill, as I do tonight, then I am going to take it, and I hope other Members do too. What the Bill primarily does is end European Union legislation and control over this House when we leave, while the second bit incorporates all EU laws into our laws—“retained EU law”, it is called. It is quite right that in future we should look at all those laws and decide whether to improve, reject or keep them, but there has to be a mechanism when we come out to have all those laws in place or chaos will occur.

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[Chris Bryant (Rhondda) (Lab)]

This Bill is utterly pernicious. It is dangerous, it is fundamentally un-British and it has at its heart a lie. It pretends to bring back power to this country, but it actually represents the biggest peacetime power grab by the Executive over the legislature, by the Government over Parliament, in 100 years. It allows the Government to drive through changes to any law by the simple fiat of a Minister. That includes the powers of the House of Lords, the date of the next general election, the composition of the House of Commons and the number of Ministers. In the most extreme instance of all, it allows Ministers to alter the very Bill itself. That is a dangerous spiral of autocracy. Some Members seem to think it is a compliment to refer to them as Henry VIII powers. I know that Henry VIII, in 1536, legislated to allow two MPs to come here from Calais, but on the whole the Tudor exercise was not a proud demonstration of democracy. These are clauses of which Erdoğan, Maduro and Putin would be proud.

[Sir Oliver Letwin]

I am very grateful to the hon. Gentleman for giving way and I am sorry to interrupt his flow of eloquence. Is he conscious of schedule 7, in particular part 2, and especially paragraph 6, sub-paragraph 2, sub-sub-section (g), in which it is made perfectly clear that it is only by affirmative resolution, and not the fiat of Ministers, that amendments to Acts can be made?

[Chris Bryant]

I am perfectly aware of all the measures in schedule 7, but I merely point out to the right hon. Gentleman that, since the Bill itself can be changed by the Government, that is one of the elements the Government can change. What happens, even under the affirmative process—this is the problem with secondary legislation—is that, because there is no opportunity to amend, the Government will say, “Take it or leave it”. They will then suddenly say, “There is a real emergency and you’ve got to take it, because otherwise there will be chaos.” That is the sword of Damocles that Governments always hold over Parliament when a clause hands matters over to secondary legislation.

[Sir Oliver Letwin]

I am doubly grateful to the hon. Gentleman for giving way. Will he withdraw his remark that it is by ministerial fiat, and resort instead to the argument that the drafting would enable the Government to exert some pressure on Parliament, which presumably he and his colleagues would resist?

[Chris Bryant]

No, I am not withdrawing it. The Bill, at several points, makes it quite clear that the Government will hold powers to bring in regulations under secondary legislation through the negative process. The whole point about the negative process is that the statutory instrument comes into law unless it has been annulled, and the only process by which it can be annulled is if the Government themselves allow time for us to debate the matter and to have a vote. I would be happy to trust the Government if in recent years—I do not know why the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker) is looking up at that point; he never used to trust the Government until he became a Minister—they had been happy, since 2010 or 2015, to honour the traditional doctrine of the House, which is that if the Leader of the Opposition demands a vote and a debate in this Chamber there will be one. They have, however, consistently refused to do that. Enormous changes to our law, affecting student nurses and every student in the land, and affecting benefits for all our constituents, have been driven through via secondary legislation. It should never have been used for such measures, without us ever being able to insist on having a debate or a vote. The worst of it, to which I have already referred, is that when we do have a debate, the Government get to decide whether it should be in Committee or on the Floor of the House. If it is in Committee, all we get is a motion stating whether or not we have debated the matter in hand.

[Sir Oliver Letwin]

rose—

[Chris Bryant]

I am not giving way to the right hon. Gentleman again. I am sure he will manage to catch your eye, Mr Speaker.

It is not as if the Government do not accept that they will have to introduce hundreds and hundreds of statutory instruments. What they should have done, before introducing the Bill, was suggest an alternative way of dealing with this process over the next two years, so that there can be proper triaging of genuinely technical and minor consequential amendments to legislation that need to happen, and significant measures where the whole House would want to take a view.

Since 1950, Parliament has rejected only 11 statutory instruments, so we know that this is an autocratic process, but let me get to a much bigger worry for me: clause 9. I am sure that hon. Members have read it. It states very clearly:

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

When I said last week in the House that this was truly exceptional, all sorts of Government Members, including Ministers, came up to me and said, “Oh no, there are hundreds of examples. I’ll give you examples by the weekend.” The first example I was given was the Scotland Act 1998, but it does not apply. Section 113(6)—I am sure the right hon. Member for West Dorset (Sir Oliver Letwin) will know this subsection—states:

“But a power to modify enactments does not…extend to making modifications of this Act or subordinate legislation under it.”

In other words, the Minister who told me that had missed out the word “not”, rather conveniently.

Then the hon. Member for Stone (Sir William Cash) came up to me and said, “No, you’re completely and utterly wrong. The greatest constitutional expert in this country”—I think he might have meant himself—“tells me that section 75 of the Freedom of Information Act 2000 gives the Government the right to change the Act itself by statutory instrument”. Unfortunately, he was wrong as well. It actually states:

“If…it appears to the Secretary of State…that…the enactment is capable of preventing the disclosure of information”—

in other words, gives the Government too much power to prevent disclosure—

“he may by order repeal or amend the enactment for the purpose of removing or relaxing the prohibition.”

It is a measure that gives the Government not more but less power. Even the Civil Contingencies Act 2004, which applies to circumstances when by universal accord—probably—the Government would need emergency powers, and which builds on previous Acts of Parliament, states categorically, in section 23(5):

“Emergency regulations may not amend…this Part of this Act”—

in other words, all the major elements of the Act.

If hon. Members who are trying to cover their tracks by saying, “We think all this secondary legislation business is terribly worrying, and obviously we’ll change that in Committee”, really care about those matters, they should consider the Government’s track record. What have they done recently? They engaged in what I would call jiggery-pokery with the DUP to ensure a majority—and let us hope we have a vote on Estimates Day on the £1 billion for the DUP; they delayed setting up Select Committees until now to make it impossible for us to scrutinise many of the measures going through during the summer months; and tomorrow, they are trying to make sure that, for the first time in our history, a Government without a majority in the House have a majority on every single Committee. If that does not make one question the bona fides of this Government, nothing will, and that is why I say to hon. Members: do not sell your birthright for a mess of pottage; vote against this Bill!

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[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight.

Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already common”. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill.

On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create—guess what?—yet more Henry VIII powers!

[Sir Oliver Letwin]

Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)—namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?

[Stuart C. McDonald]

I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.

Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.

We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.

With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Mr Leslie]

There is a sort of sadism or masochism— I do not know which it is—on the part of a small number of hon. Members who relish the idea of a no deal scenario, saying, “The WTO has a fantastic set of rules —let’s just dive straight in.” However, I think there is consensus in the House that a transition is necessary, and if that is the case, we must work together across the parties to make sure we put in place the right legislative framework to deliver and facilitate such a transition.

The Prime Minister pointed out after her Florence speech that the European Court of Justice will

“still govern the rules we are part of”

during a transition. The Prime Minister is right. The European Union has said in terms that the entirety of the acquis communautaire needs to apply during a transitional period and that it is the equivalent of the single market, the customs union and the four pillars—the freedoms—within them. That has to include the European Court of Justice, if we are going to sign up to that set of arrangements. That is also the Labour Front Benchers’ policy for the transitional period. Indeed, they will want to speak to their own amendments detailing how they envisage the transition needs to take place.

It is worth reminding ourselves why it is that, during a transition, we will still need a resolution mechanism through the European Court of Justice. The right hon. and learned Member for Rushcliffe (Mr Clarke) mentioned in an earlier intervention that the UK took the European Central Bank to the European Court when there was a question whether the euro clearing arrangements might not be feasible in the City of London. From time to time, therefore, we have benefited from that dispute resolution arrangement.

What would happen if other circumstances arose during a transition? For instance, if UK citizens living abroad wanted to get their pension payments but there was an obstacle to them doing so, they would need to be able to seek redress, and that could be provided by the European Court. If a breach of competition rules adversely affected a UK firm, it might seek to get redress through the European Court of Justice. If the European Union started passing rules in conflict with the transition agreement, we would want the Court to resolve the situation in our favour. If UK firms were denied market access in the European Union, we would need resolution arrangements during a transition period. The application of the European Court of Justice is integral to such issues—the Prime Minister was right to accept that—but the Bill presents a problem.

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

The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?

[Mr Leslie]

My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.

I invite hon. Members to turn to page 3 and read clause 5(1), which states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.

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[Dominic Raab]

I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled.

I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.

[Sir Oliver Letwin]

Will my hon. Friend give way?

[Dominic Raab]

I am going to make a little more progress, but I will give way to my right hon. Friend in due course.

The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way.

We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.

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[Dominic Raab]

I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.

I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.

[Sir Oliver Letwin]

I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?

[Dominic Raab]

I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.

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[Dominic Raab]

I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.

Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.

I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.

The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.

Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.

I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.

Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.

[Sir Oliver Letwin]

May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that

“the Supreme Court is not bound by any retained EU case law”.

It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?

[Dominic Raab]

The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.

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[Stuart C. McDonald]

I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.

We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.

[Sir Oliver Letwin]

It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.

It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:

“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.

As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.

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[The Solicitor General]

I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.

[Sir Oliver Letwin]

With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.

[The Solicitor General]

What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.

[Sir Oliver Letwin]

If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.

[Mr Grieve]

I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court’s jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.

[Sir Oliver Letwin]

Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.

[Mr Jenkin]

I understand the words

“in accordance with any retained case law”

in clause 6(3)(a), but I do not understand the words

“any retained general principles of EU law”.

That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.

[Anna Soubry]

No, no.

[Sir Oliver Letwin]

Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)—and she is a friend of mine, but she is quite wrong about these issues—I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other.

I feel sure that the reason clause 6(3)(a) says that the court should judge

“in accordance with…any retained general principles”

is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a).

This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),

“not bound by any retained EU case law”,

but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.

[Mr Leslie]

The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.

[Sir Oliver Letwin]

The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.

[Sir William Cash]

My right hon. Friend is asking some very interesting questions, but that does not necessarily mean—he, or indeed any of us in this Chamber, not being a judge—that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,”

and that must include this Bill.

Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.

[Sir Oliver Letwin]

I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position—and it then needs to be carried over for the Supreme Court just as much.

My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.

[Wes Streeting]

It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who, in uncharacteristic fashion, had to knock several lumps out of his own Front Bench to get it to see sense around some obvious problems with clause 6. I have chosen to rise at this point in the evening to pick up on some of the inconsistencies and flaws, revealed during this debate, in the insufficient—in some cases, absent—replies from the Government Front Bench.

My hon. Friend the Member for Sheffield Central (Paul Blomfield) asked the Minister very clearly whether the jurisdiction of the ECJ will apply during the transition period. I do not believe the Minister has addressed that, but I am happy to give way if he would like to do so now.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

[Mr Grieve]

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

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

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

[Mr Grieve]

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

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

--- Later in debate ---

[Peter Grant]

It would certainly be worrying if any major power was able to use dirty tricks to influence the result of a democratic process in any country. It may be worth remembering that it is not that long ago that David Cameron pleaded with Vladimir Putin to interfere in another referendum to ensure that he got the result he wanted. It is important that, if we are going to criticise and call out foreign interference on behalf of our opponents, we should also be prepared to call out foreign interference in our favour.

It is important for the people I represent and the nation that has sent me to this Parliament to be one of its representatives that we seek to retain as much as possible of the benefit of European Union membership, even after we have been forced to temporarily leave it, so we should seek to reverse the Government’s unilateral decision on membership of the single market and the customs union. Plaid Cymru’s short amendment would help to do that by ensuring that, even after leaving the EU, the Government have no authority to leave the European economic area without a further vote of this Parliament.

The first benefit of that would be that the 4 million would be able to relax, if the UK Government say today, “We got it wrong. We’re staying in the European economic area and in the single market.” All the worries about settled status and all the paperwork that people have to go through just to guarantee the rights that they already have would stop, as would all the concerns about how we square the circle of borders or no borders at different stages between the UK, Northern Ireland and the Republic of Ireland if Northern Ireland and the rest of the United Kingdom remain in the single market and the EEA.

[Sir Oliver Letwin]

Can the hon. Gentleman explain what on earth he is talking about has got to do with the two clauses under discussion?

[Peter Grant]

I am speaking to amendments on the amendment paper, if the right hon. Gentleman would care to look at them.

I have no great expectation that the Government will accept either Plaid Cymru’s amendment or the SNP’s proposed new clause, which will be decided at a later date, but I want to continue to remind them and their Back Benchers, as well as Opposition Back Benchers, that we do not have a final, irreversible decision on the single market. We might not even have an irreversible decision on the European Union, but we certainly do not yet have an irreversible decision on the single market and membership of the European economic area.

There is a way in which the Government can extricate themselves from the mess that they have created for us; end the torment of 4.5 million people who still do not have an absolute legal guarantee that their children will be allowed to finish at the school at which they have already started; ease the daily growing concerns of businesses the length and breadth of these islands that do not know whether they will be allowed to import raw materials or export finished goods; and ease the concerns of our public services that their essential workers, including care workers, nurses and doctors, may not be able to continue to move here to serve our people. It is all right for the bankers, of course, because there will be an exception for them. They will have free movement, but nurses, doctors and care assistants are apparently not important enough.

Even if, for political reasons, the Government cannot ask their Back Benchers to support amendments either today or during later Committee sittings, I ask them to think very carefully about what I am saying. There has not been a referendum to leave the single market, so the situation can be changed by the will of this Parliament and the support of the Government. They do not have to go back on their promise to respect the result of the referendum to leave the European Union, but they can reverse the headlong charge towards the cliff edge and make sure that the Bill actually delivers what it is supposed to deliver, and that means we have a soft landing instead of falling off the cliff edge in March 2019.

--- Later in debate ---

[The Solicitor General]

With respect to the hon. Lady, I do not agree with her analysis. We will carry out more detailed scrutiny of clause 5 and schedule 1 at a later stage, but I reassure her that clauses 2 and 3 will create certainty which, as I have said, is vital.

We drafted clause 2 in a deliberate way. We have drawn it more widely than to cover just domestic legislation created under the 1972 Act as it will also apply to any other domestic primary or secondary legislation that implements EU obligations. It will apply to any related domestic legislation, any domestic legislation relating to law that will be retained under clauses 3 and 4, and indeed any domestic legislation that is otherwise related to the EU or the European economic area. That ensures that all that legislation will form a part of what we define as retained EU law.

We have done that for two reasons. First, it means that this legislation, where relevant, will be interpreted in the light of pre-exit case law—the case law of the Court of Justice of the European Union—and the general principles of EU law, which are provided for in clause 6. That is vital to ensure not only that we save the legislation, but that we provide for it to operate in precisely the same way as it did before, which will prevent legal uncertainty about how such provisions should be interpreted.

Secondly, our approach ensures that to the extent that deficiencies might arise in any legislation as a result of exit, they can be corrected under powers in the Bill. Saving the domestic legislation under this clause will therefore reduce the risk of uncertainty and increase continuity as to the law that applies in the UK. It will also mean that we avoid the famous cliff edge that many hon. Members are worried about when we leave the EU.

[Sir Oliver Letwin]

I do not want to pursue further the questions about clause 6—we will talk about them anon, and we talked about them yesterday—but while very many of us have no objection to anything my hon. and learned Friend says about the way in which existing law will be incorporated under clauses 2 and 3, does he accept that the issues raised by Members on both sides of the Committee are about the mechanisms by which the Bill seeks to achieve what he describes as correcting deficiencies, but could also be used to do much more than that? Does he therefore accept that the only thing we are currently debating is the mechanism to ensure that more than correcting deficiencies is not done by the technical means of statutory instruments under the negative procedure?

--- Later in debate ---

[The Solicitor General]

I am sorry, but I need to make progress. I want to deal with the proposals tabled by hon. Members, including the Opposition spokesman.

I will say a little about how we will deal with converted law, which was raised by my right hon. and learned Friend the Member for Beaconsfield. Converted law will become domestic legislation. It will not automatically have the status of either primary or secondary legislation. Indeed, as has already been referenced, paragraph 19 of schedule 8 sets this out:

“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”.

We all know—including the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State—about the consequences in terms of incompatibility, the power of the courts and what the House can do to rectify legislation. I think that is an enhancement. It is a welcome initiative and I know the right hon. and learned Gentleman shares my view about that.

Where there are existing pre-exit powers to make subordinate legislation, which is capable of amending retained direct EU legislation such as converted regulations, the converted legislation is to be treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers. In other words, we might bring something down to this place and transpose it. We used to use the term “gold plating”, but it has somewhat gone out of fashion now, and I think the Government improved their processes over the years. However, there have been powers to vary, and, in effect, that will be treated as secondary legislation—no change, really, because the House already had those powers with regard to scrutiny.

It follows, then, that where there are not pre-exit powers to make subordinate legislation, we will look case by case at the converted law and determine how it is to be treated. This is the point that has been made by my right hon. and learned Friend the Member for Beaconsfield and others: how are we to determine what is what? As I have said, I am keen to ensure that all concerns are properly listened to, and that when we come to further amendments on further days, the Government give full consideration to how to create that mechanism and in what form the House, and indeed the other place, would like it to be administered.

[Sir Oliver Letwin]

My hon. and learned Friend may be saying what I had hoped he was going to say. May I ask him to be a little more specific? Does he mean that, in due course and in their own time, the Government will come forward with—if I might put it this way—a triage amendment that settles a process for distinguishing between technical deficiency amendments and substantive amendments, and the way in which either is treated?

[The Solicitor General]

We are going to continue the dialogue, listening extremely carefully. Indeed, there might be a form of words that we can agree on that satisfies this place. Let us not forget that primary legislation is not the only way we can create this mechanism. There are Standing Order provisions of the House that the House jealously protects and preserves, and the Government are mindful of the need not to trespass on the exclusive cognisance of the House.

--- Later in debate ---

[Mr Leslie]

I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.

[Sir Oliver Letwin]

There is a danger in Committee that we get sidetracked into rehashing the whole of the Second Reading debate, and I certainly want to avoid that at all costs. Moreover, I have no basic problems with the structural phrasing of clauses 3 and 4, unlike clause 6, which we debated yesterday and will be discussing further anon.

I want first to put on the record what I think my hon. and learned Friend the Solicitor General, in a helpful series of exchanges with various Members, has already confirmed and then to point out one interaction with clause 6. I understood him to say that at an appropriate point, either on Report or in another place—on Report, I hope—the Government would come forward with some mixture, to be decided, of changes to Standing Orders and changes to the Bill to ensure some process for Parliament to sift, or to have sifted on its behalf and then reported to it, all the proposed amendments to existing EU legislation incorporated or saved under clauses 3 and 4, and indeed any others.

--- Later in debate ---

[John Redwood]

Clauses 2 and 3.

[Sir Oliver Letwin]

Sorry, clauses 2 and 3. I do apologise. My right hon. Friend accurately corrects me, and I hope that Hansard notes that correction.

If that is therefore what my hon. and learned Friend said, I have nothing further to add to it. However, I want to point up one connection with the useful discussion we had yesterday about clause 6. The more I have thought about this over the past few weeks, the clearer it has become to me that the ultimate resolution to the problem of the unrestrained abilities of the Supreme Court under clause 6(4)(a) is to make it clearer in the Bill that the method by which any change in the snapshot legislation that my hon. Friend the Minister of State, Ministry of Justice, was talking about should be made not by the Supreme Court, but by Parliament. The point is that, so far as there is fundamental change, and in particular so far as there is fundamental change in the interpretation of the plain words of directives, regulations and treaties, it should be made by primary legislation.

That puts primary legislation in the right place, and hence puts the Supreme Court in the right place, because the Supreme Court is there to interpret the common law, which this is not, and to interpret statute, which this could and should be, and it can certainly also interpret European law using European principles except to the extent that, through statute, this Parliament has changed those things.

That would be a perfectly recognisable pattern. As I mentioned yesterday, it is not my ideal pattern, as I would like to unwind in the Bill a good deal of the expansive interpretations of the European Court of Justice that have gone before exit day, but I recognise that the Government might not want to do that. It does not worry me if they do not, because this Parliament, post-Brexit, will have the ability to do it, which is, from my point of view, even speaking as someone who on balance was a remainer, the big advantage of exit. We will be able to make those decisions as a Parliament through the proper process of primary legislation.

By coming forward with the package that I think my hon. and learned Friend the Solicitor General offered the Committee a little while ago in this debate, he will also point the way to at least a great part of the solution to the problems of clause 6. While we are at it, just as a bonus, we have not yet debated clause 5—assuming I have my numbers right—but we will do so anon. When we do, we will hit exactly the same set of issues in a slightly modified form. While we are at it, we will hit this again in clause 7, in another way. The same package that the Solicitor General has suggested will handle all the problems arising from clauses 5 and 7, and point the way to handling the problems with clause 6, once we have got rid of the clause 6(4)(a) error.

We have a pattern here that can make the Bill work in its own terms. It can provide the flexibility that the Government need in order to correct deficiencies, to transpose or adjust things when references are technical or incorrect, to bring to the House important matters that need adjustment but are not fundamental, and to give this Parliament the power it needs to change the law fundamentally and to make that something that Parliament does, rather than the Supreme Court. If we can get to that point, we will have a Bill that is perfectly good in its own terms and that will serve the purposes that the Government intend for it, and I shall rest happy in the knowledge that I have in a small way been able to contribute to a series of debates that will have provided legislation of which we can be proud.

[Mr McFadden]

I want to make a few points about new clause 22, which my hon. Friend the Member for Lewisham East (Heidi Alexander) spoke to a little while ago. Language can obscure things as well as shed light on them, and that is true of much of our Brexit debate. For example, we were told that this was all about taking back control but, as we have seen many times since the referendum, the Government have stoutly resisted giving control to Parliament, resisted publishing a White Paper, and resisted allowing us a meaningful vote. They have finally caved in on having legislation, but they are still resisting allowing us a meaningful say on a real choice, rather than a choice between whatever is negotiated and no deal and WTO rules. We were told that Brexit would save huge amounts of money, yet one of the critical issues in the talks is how to settle a multi-billion pound divorce bill that was mentioned by no one during the referendum campaign. So language can obscure as well as shed light.

Perhaps this is nowhere more true than in all this talk about “the negotiations”. Unsurprisingly, the public place great faith in anything called “negotiations”. If I were buying a house from someone—I hesitate to tread here after yesterday’s exchanges—who was asking a certain selling price and I offered a certain purchase price, the negotiation would involve us meeting somewhere in the middle. There might be parts of the Brexit talks that involve negotiation in that sense of the word.

I serve on the Brexit Select Committee, but I should add that I do not seek to speak on its behalf here today: this is my interpretation of the situation. Last week, the Committee spent a couple of days in Brussels and Paris talking to some of the people involved in the so-called negotiations. There may be negotiation about parts of this process, particularly in phase 1, but the point that I want to make—which refers to new clause 22 and the European Economic Area—is that our future relationship is less about negotiation than about a fundamental choice. What is the relationship that we want to have with the European Union? Where do we want to be in relation to its system, which is a market with rules? The people that we talked to about this round of talks made it pretty clear that this is a choice. It is a decision.

Basically, there are two ways of doing this. The first is the way outlined by my hon. Friend the Member for Lewisham East—that, having voted to leave the European Union, we remain part of its single market system and adhere to the rights and obligations that that gives us, and in so doing, we put the economic prosperity of our people first. That is one way, and I wholeheartedly back my hon. Friend’s assertion that the referendum did not decide this question. The referendum decided our membership of the institutions. The referendum did not decide on the manner of leaving the European Union. There are countries outside the European Union that take part in this system, and we know which they are. I do not think that this is a perfect solution by any means. There is, of course, the issue of having a say in the rules, and whatever our say is outside, it will not be like the say that we have now. My hon. Friend the Member for Lewisham East covered that as well.

The other option involves a free trade agreement, something akin to what has been negotiated with other countries. This matters to our economy. We have talked a lot in these debates—and I have been guilty of it myself—about the importance of manufactured goods. We have talked a lot about cars, we have talked a lot about aerospace, and we have talked a lot about agricultural products. All those are all hugely important to our economy, but 80% of it consists of services. We are hugely successful at them, and we are hugely successful at exporting them. Tens and hundreds of thousands of jobs are sustained by financial services, insurance, legal services, business services and so on. I must say to those who advocate the FTA option that the blunt truth is that no existing FTA would give us anything like the access to the services market that we currently enjoy as members of the single market.

That, fundamentally, is the choice that we must make. The Solicitor General resisted the existing comparisons, as the Government have throughout: they have said, “We will have a bespoke arrangement that is somehow different from this.” Let me tell the Solicitor General candidly that not a single person on the other side of the table last week thought that that was possible.

This is a decision, a choice. What kind of Brexit will we have? Fundamentally, at some point, the Government will have to face up to the truth, be candid with their Back Benchers and the House as a whole, and be candid with the public. The choice, in the end, is not just a choice between systems, but a choice between economics and nationalism. It is a choice about whether we put the prosperity of our constituents first or the nationalist ideology that is driving this agenda, and I know which I prefer.

--- Later in debate ---

[Caroline Lucas]

The hon. Lady is absolutely right. The role of the ECJ in applying fines has concentrated the minds of policy makers in the UK. It was only the threat of significant fines that led to the air being cleaned up in places such as London. One of the many things that worry me about the Brexit process is that, even in what the Secretary of State for Environment, Food and Rural Affairs said about closing the so-called governance gap, I have not heard any proposal from him for real sanctions to concentrate the minds of policy makers on bringing their laws into conformity.

In EU law, the environmental principles are forward looking and play a formative role in guiding not just day-to-day decisions, but future policy development. That role could be lost under the Bill as drafted. In the months and years ahead, the principles of environmental law should be applied to UK decision making in a number of high-risk areas, such as trade policy, chemicals, and infrastructure planning, but unless the Bill is amended, the legal force of the environmental principles to guide future policy and decision making will be lost.

I want to end with a few words about national policy statements. The Government have suggested several times that instead of enshrining the principles in UK law, they might instead consider using the NPS route. I have real concerns about that because an NPS is not a fixed, long-term commitment, and does not provide the long-term certainty of primary legislation. Such an approach would represent a serious step backwards from the current position.

The statutory framework for establishing an NPS limits its scope to planning matters, so we would need a new statutory instrument to have a much broader scope. Also, an NPS lacks the binding character of legislation. Courts could give little or no weight at all to policy statements so, essentially, the basic problem with an NPS is that a Secretary of State has a great deal of control over it, unlike with primary legislation. In a case in which a non-governmental organisation or an individual wanted to use an NPS to hold the Government and public bodies to account, there could be a serious temptation for the Government to amend the NPS precisely to make it less effective at holding them to account.

I want briefly to express my support for amendments 93 to 95, which the hon. Member for Bristol East will no doubt speak to. Those amendments speak to the primary intention of the Bill as expressed by Ministers. Without them, it could not be said that the same rules and laws will apply on the day after exit as on the day before, as the Prime Minister has pledged. They are needed to ensure that our laws and our rights, and indeed the intent and purpose behind them, remain the same immediately after withdrawal from the EU. Any changes to those laws and rights, other than to ensure the faithful conversion of EU law into domestic law, should be made following our exit from the EU only through primary legislation, not by any other means. Those amendments therefore ask, in a sense, little of Ministers, and so, as with new clauses 30 and 60, I hope that the Minister will respond positively to them.

[Sir Oliver Letwin]

I have a large degree of agreement and sympathy with what the hon. Member for Brighton, Pavilion (Caroline Lucas) has just said. So far as animal sentience is concerned, I suspect we may find that there is more on that already in UK law than she is allowing, but I wait to hear from the Government about that. However, I do agree that, one way or another, we need it to be present in UK law at the end of this, and I think the Secretary of State is probably pretty convinced of the same thing.

I want mainly to talk about the question of new clauses 60 and 67, or more precisely what they are aiming at and how best to achieve it, because the point at which I disagree with the hon. Lady is not one of ends but one of means. It is a rare thing to happen in the House of Commons, but I hope I might at least half-persuade her by the end of my remarks that it would be better for her to adopt a different view of the mechanics than she is suggesting.

Let me begin with this: I agree with the hon. Lady wholeheartedly that, in the light of schedule 1, we cannot possibly rely on clause 6—even as I hope it will subsequently be adjusted—and still less on clauses 2 and 3 to do the heavy lifting that she rightly wants to get the precautionary principle and other critical principles into UK law. She is absolutely right about that.

The question that the hon. Lady and I are both asking is, how best can we get over that problem and get to the position where the UK courts and the UK Administration as a whole—the Government and their agencies—carry on applying those principles in a sensible and serious way to our environmental protection over succeeding decades? This is obviously a matter not just of a minute or a day or a year, but of a long period over which we want a settled, continued policy being carried on by succeeding UK Governments of different persuasions.

If that is the question, clearly one route would be some variant of new clause 60, which was tabled by the hon. Member for Wakefield (Mary Creagh), or new clause 67 or some other variant. I completely admit that that is a route, but I want first to explain why I do not think it is an optimal route and then to explain why what has been talked about by the Secretary of State is a better route.

--- Later in debate ---

[Geraint Davies]

Is not one of the central problems of the Bill that the legislation is so broadly drafted that there is no effective means for the courts to exercise judicial review, and that the reason we need these principles in it is to enable the court to get a grasp, which would be much better than if there is nothing there at all? Otherwise, we would have to live with a hotch-potch of precedents, which the Secretary of State referred to in the Select Committee.

[Sir Oliver Letwin]

I am delighted that the hon. Gentleman asked that question, because more or less the whole of the rest of what I want to say answers that very point. I think there is a better structure available to us, which will enable Parliament to be much more certain that the courts will be enforcing a set of much more detailed principles in a much more concrete and much more certain manner. I think that would answer the hon. Gentleman’s point and reassure him, and I believe it would do better at achieving what the hon. Member for Brighton, Pavilion wants to achieve than her own suggestions.

[Geraint Davies]

rose—

[Sir Oliver Letwin]

May I explain what I have in mind? I am more than willing to give way to the hon. Gentleman again if he does not agree as I go along.

The first point about a better structure is that it does indeed need to have a statutory base, but that need not be in this Bill. In fact, I think it is much better that it should be an environment Bill, because an environment Bill gives the scope and opportunity to determine these things in much more detail and much more carefully, and gives the House, rather than what we have now—two and a half hours, not all of which will be spent on this topic—days and weeks of consideration in both Houses. That is the right way to do long-term environmental legislation.

[Kerry McCarthy]

The Environmental Audit Committee recommended, after its inquiry into the future of the natural environment post Brexit, that the Government bring forward an environmental protection Bill in order to do just what the right hon. Gentleman says, but there is no sign that the Government are prepared to do so. In the absence of such legislation, does he not think that the second-best option would be to protect the environment by supporting new clauses 60, 67 and 28, which are on the table today?

[Sir Oliver Letwin]

Well, we must leave it to Ministers to speak for themselves, but I have to say that the discussions that I and others had with the Secretary of State, who, as people have remarked in this debate, is of a very different cast of mind from some previous Secretaries of State, suggest to me that actually there will be an environmental protection Bill coming forward. I think that is—[Interruption.] Ah! Maestro! With perfect timing my right hon. Friend the Secretary of State comes into the Chamber, at just the right moment for him to signify with a nod, if nothing more, that the possibility of proper environmental legislation in the form of a new statute is on his mind.

[The Secretary of State for Environment, Food and Rural Affairs (Michael Gove)]

indicated assent.

[Sir Oliver Letwin]

And his mind is one that is capable of grasping these matters, if ever the mind of a Member of the House of Commons was. The first point, then, is that a proper statutory basis is superior to a specific amendment to the Bill.

[Caroline Lucas]

Why does the right hon. Gentleman think that the two are mutually exclusive? Why could we not have the security of knowing that we have a provision in the Bill? We are delighted with the new Secretary of State, but how long will he stay? Who knows? Who might come next? We want the certainty of the Bill now, as well as the nice hope of the environment Act that so many of us have been requesting for such a long time.

[Sir Oliver Letwin]

First, I am confident that this Secretary of State will be here for rather longer than some other Secretaries of State have been recently. I welcome that, because I think he is a very, very fine Environment Secretary. Secondly, I am not saying that it is inconceivable that there could be two pieces of legislation, but I think it rather inelegant to legislate in a slightly awkward way, and then to repeal that legislation in a Bill that would probably start its passage before the passage of this Bill has been completed. I would prefer it to be done properly, although opinions may differ.

[Mary Creagh]

We have had three Environment Secretaries in two years, and we have all been waiting for the famed environment plan for two and a half years. A 25-year environment plan will be a 22-year environment plan by the time it is actually published. What gives the right hon. Gentleman the confidence to assume that an environment Act, which would have to be underpinned by the environment plan, will be in place by the time we leave the EU, especially if we end up leaving without a transitional deal and crashing out in March 2019?

[Sir Oliver Letwin]

What gives me the confidence is that I think it is perfectly doable, and I think the Secretary of State intends to do it. I am in a slightly odd position—the Secretary of State has to nod each time I say these things, because I cannot speak for him—but I assure the hon. Lady that I really am very confident about that. Let us proceed for a moment, however, on the assumption that that is indeed going to happen. That gives us a place in which to do things, although of course it does not solve all the problems.

My second point is that, unlike the hon. Member for Brighton, Pavilion, I think that a national policy statement is an ideal vehicle for the translation of these principles into something much more solid and much more determinate. A national policy statement is not just something that a Minister dreams up and issues like a piece of confetti. It comes before the House of Commons and is subject to resolution by the House of Commons, and it is therefore debated. It is exposed in draft, and it is discussed by the green groups.

There will of course be considerable debate about the exact terms of a national policy statement that seeks to turn those principles into something much more concrete, but I think there is ample scope for turning it into something of which we could be really proud. It would also have a huge advantage over mere principles when the courts came to judge the actions of the state and measure them against it—for that is exactly what would happen. A national policy statement is a policy statement by Ministers. If Ministers do not follow that policy, they are, by hypothesis, acting irrationally and in a Wednesbury unreasonable way, and can therefore be judicially reviewed. When they are judicially reviewed, the courts will look at the policy statement and compare it with their actions. If the policy statement is properly debated, properly exposed and properly expressed, those actions can be measured against it in a very determinate and careful way, and we can end up with a much more solid environmental protection than we would ever have got out of the principles.

[Caroline Lucas]

The idea that judicial review will be an adequate recourse is misguided. Judicial review is about only the process, not the outcome. Moreover, it is becoming harder and harder for people to obtain the necessary funds: plenty of people would not know how to begin to do it. I also do not share the right hon. Gentleman’s confidence about the way in which a court will necessarily regard a national policy statement. An NPS does not have the same quality of judiciability as primary legislation.

[Sir Oliver Letwin]

Perhaps we will not reach agreement about this. I disagree with every part of what the hon. Lady has just said. First, judicial review has been a highly successful mechanism for environmental campaigners. It is, in fact, from judicial review that the clean air measures have arisen. Secondly, the reason why it is particularly effective in the case of a national policy statement is that a policy statement is a policy statement by Ministers and therefore creates a presumption of Wednesbury unreasonableness if it is departed from, so it is very easy to use as a tool for judicial review. Thirdly, judicial review is the mechanism that the principles in the new clause of the hon. Member for Brighton, Pavilion, or the Opposition new clause or the new clause of the hon. Member for Wakefield, would have to operate on. It is not the case that the courts in our country would simply take a set of principles and apply them to some set of cases. They would not know what to do with them. The Government would have to be judicially reviewed for failing to apply those principles in their policy.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I will give way in a moment.

It is much better to be in a position where we can take the Government to judicial review for failing to apply a much more detailed set of policies, which are the Government’s policies, as approved in the House of Commons by resolution, and which have been fully debated and where we then know whether the court is likely to find that the action is or is not in accordance.

[Caroline Lucas]

rose—

[Mary Creagh]

rose—

[Sir Oliver Letwin]

I will give way to both hon. Ladies shortly, but first I want to come to a further point that is an important part of the architecture.

I do not personally believe that even the combination of an environmental protection Bill and an NPS emerging from it and under it would be sufficient. This exactly answers the last point of the hon. Member for Brighton, Pavilion. I accept that it is difficult for campaigners and others to use the vehicle of judicial review, which is why I and some of my hon. Friends have advocated what we have proposed, and why we have agreed with the Secretary of State.

[Michael Gove]

indicated assent.

[Sir Oliver Letwin]

The Secretary of State is again nodding. That is why we have agreed that it is necessary under that same statute to create a body which is a prosecutorial authority, wholly independent of Government, along the lines of the Victims’ Commissioner, the Children’s Commissioner, the Office for Budget Responsibility, or the Equality and Human Rights Commission—we can choose which model—and which is an entity that is small and lean but, like the Committee on Climate Change, very serious. It would be established under statute, and charged with a duty under statute to ensure that the NPS is observed. I advocated the CCC when I was first working with Tony Juniper to get what became the Climate Change Act accepted in this House, and at an early stage I came to believe that the combination of clarity of objective and a body wholly independent and staffed by serious experts was a powerful mechanism, and so I think it has proved to be.

[Caroline Lucas]

I am interested in what the right hon. Gentleman is saying. Is he proposing that the body he is describing would have the same power of sanction that currently—as we have been talking about—the ECJ has, in the ability to fine Governments, which is what finally made them conform to the air quality laws, for example? Will this body have the capacity to do something as strong as fining Government to make sure they put their house in order?

--- Later in debate ---

[Sir Oliver Letwin]

In a word, yes, because this body will be able to take the Government to court, and the courts have the power to injunct, and if the Government fail to observe an injunction, results follow. The body must have that capacity.

I am not envisaging—and I know the Secretary of State is not envisaging—anything remotely like the Environment Agency or Natural England, which are part of the DEFRA family, if I can put it that way. This agency will not be an agency of the state, carrying out the Government’s operational objectives; rather, it will be independent of the Government and will continuously be judging the Government’s actions, taking on board the complaints of others, and using the expertise.

Finally, before I give way again, let me say that I hope the hon. Lady will take some comfort from the fact that ever since I began to propose this with some of my hon. Friends, and started discussing it with the Secretary of State, those who most disagree with her and me about these things have been sticking pins in voodoo images of people like me, because they are afraid that this body might be very effective. I take some comfort from that, and hope the hon. Lady will, too.

[Mary Creagh]

I am interested to hear the right hon. Gentleman develop the ideas around this new body to fill the commission-shaped hole, which was what the Secretary of State described to our Committee, but I want to press the right hon. Gentleman on the point of remedy, because there is no such body. The CCC sets out goals, but does not have any remedy against Government if we fail to meet our targets; it only has the power of its authority in saying that we are missing the fourth carbon budget, or the fifth carbon budget, and so forth.

Secondly, on judicial review, the Ministry of Justice proposed to increase the fees charged to individuals and environmental groups in clear breach of the Aarhus convention, which guarantees access to environmental justice through European law for everybody and caps the costs. The only reason why that proposal was overturned was a judicial review brought by big charities such as the RSPB, not because the Government were aware of the principles.

[Sir Oliver Letwin]

The hon. Lady is actually making my point. If one looks at new clause 60 or new clause 67, they clearly do not create a right of action against an individual. They create the possibility of judicial review of Government, and I accept the good intention of doing so. Instead, we have the possibility of judicial review of Government not in the hands of some private charity, group, NGO or whatever, but through a taxpayer-funded, statutory body that can take the Government to court, where the Government will be measured against a precise policy statement that is authorised by this House. That is a much more powerful vehicle. In fact, it is the most powerful vehicle available to us for the control of Government. We know nothing higher than the Supreme Court as a means of holding Government to account in relation to their own policies, as approved by the House of Commons. It is an ironclad method of proceeding. I accept that we would of course have prolonged discussion of what was in the policy statement and further prolonged discussion of exactly how the body was structured. There is a basis for debate, but the fundamental structure is much more powerful than what is proposed in either of the new clauses.

[Lloyd Russell-Moyle]

I congratulate the right hon. Gentleman on some nice blue-sky thinking about what could come in the future, but I do not see how that is mutually exclusive to the new clauses that we are debating. They relate to values that the UK has signed up to through, among other things, the Rio principles and the Aarhus convention that are currently underpinned in EU law to ensure that they are binding in British law. Leaving the EU would mean that there is no underpinning for our courts to rely on them. The new clauses would allow the courts to use them and rely on them in other judgments. If the right hon. Gentleman’s blue-sky thinking comes forward, it could happen then as well.

[The Temporary Chair (Mr Gary Streeter)]

Order. I know that we are in Committee, but interventions must be brief.

[Sir Oliver Letwin]

That was the subject of a previous intervention, and what I said in response then I will say again. The application of the principles in this Bill is a possible way to go and is not necessarily incompatible with later legislation, but it seems rather awkward to legislate inadequately and then to produce a good piece of legislation that repeals the inadequate legislation—we certainly would not want them to conflict—when it is extremely likely that the Bill in question will actually be marching through the Houses in parallel with the Bill that we are now discussing.

My second point is that the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle)—this is part of the reason why we have a slight difference of view about the means—has far more faith in the current TFEU principles than is justified. They are principles of procedure that govern proceedings and hence have a big effect on the formulation of EU directives. Had they been part of EU law in a strict sense, they would of course have been incorporated into the Bill that we are discussing, and the problems that the hon. Member for Brighton, Pavilion and I agree exist about this Bill not carrying them into UK law would not exist.

At the moment, we have weak procedural principles, and new clauses 60 and 67 seek to take those weak procedural principles and turn them into a weak procedural principle of UK law. I am recommending, and I think the Secretary of State is happy to take forward, a solid statutory basis for a powerful body operating against a statutorily based national policy statement approved in this House in order to create a binding mechanism that is far more ironclad than what is currently on offer.

[Neil Gray (Airdrie and Shotts) (SNP)]

On adopting EU law into domestic law, I am sure the right hon. Gentleman will accept that there is more than one legal jurisdiction in these isles. On that basis, does he believe the UK Government should be discussing and seeking agreement with the Scottish Government on how it should happen in Scotland?

[Sir Oliver Letwin]

I leave that to the Government, but it is noticeable that new clauses 60 and 67 would have UK application. I take it that we will be able, by one means or another, to ensure that such legislation as comes forward is so discussed with the devolved authorities that it, too, has some kind of UK application. The precise means of doing that I am neither competent nor desirous to discuss in the context of these amendments.

[Sir Edward Leigh]

After Brexit, we all want to have the best environmental standards possible. Before my right hon. Friend sits down, will he return to new clause 30? If he reads new clause 30, he will see that it drives a coach and horses through the entire principle of the Bill, because in matters concerning animal welfare it would make, for all time, our courts and Supreme Court ultimately subject to the treaty of Lisbon. In that sense, new clause 30 is therefore a wrecking amendment.

[Sir Oliver Letwin]

I did not intend to return to new clause 30, which I did not table, but my hon. Friend may well be right. I am sure the Government will have something to say about sentience in UK domestic law.

I am under pressure from the Whips to end, and I certainly will end. [Interruption.] I am very sorry. I just express the hope that we can at least continue to discuss this. My hon. Friends and I, as well as the Secretary of State, have tried to discuss this in some detail with the environmental groups, and we should continue that discussion because there is a golden opportunity to do something very good for our country and for our environment.

[Several hon. Members rose—]

--- Later in debate ---

[Kerry McCarthy]

My hon. Friend is quite right. It is about the removal of the cap on costs as well, and the fact that local people bringing these cases might find themselves liable to a huge financial burden if they are not successful.

Amendment 93 removes clause 4(1)(b), which restricts rights in clause 4 to those which are

“enforced, allowed and followed accordingly”.

Amendment 94 removes clause 4(2)(b), which excludes rights arising under EU directives that have not been adjudicated by the courts before exit day. There is no explanation as to why only rights that have been litigated on or enforced are carried over. The Minister may dispute this, but my interpretation is that the result will be that contentious aspects of law will be retained, but those that have never been litigated, perhaps because they are really obvious and incontrovertible and no one has seen the need to challenge them—the ones that everyone accepts—will be the ones at risk, which seems a little bizarre.

[Sir Oliver Letwin]

I have a great deal of sympathy with the hon. Lady’s amendment 93. I hope she would agree that it would be helpful if the Minister responded to her amendment and the points that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made by explaining what would be lost if paragraph (b), which is as clear as mud to many of us, were left out and paragraph (a), which is blissfully clear, were in place.

[Kerry McCarthy]

I can only invite the Minister to intervene on me at some point before I finish this speech and give a bit more clarity. I am glad that another superior intellect is as baffled as I was by that provision.

Amendment 95 adds wording that attempts to deal with the poor transposition of EU law, so that if retained law is found to have been incorrectly or incompletely transposed, there would be a statutory obligation on Ministers to make the necessary modifications to correct that. It says that until that piece of EU law is fully and correctly transposed, the EU directive itself can still be relied on. There are some clear examples of where we have not correctly transposed EU directives. For example, the Royal Society for the Protection of Birds points to article 10 of the birds directive in relation to the marine environment, which requires Governments to carry out research and other works to inform our efforts to protect wild birds. That goes back to what I was saying earlier—that it is not possible to enforce environmental protections properly without monitoring to ascertain the scale of the problem. The requirement to carry out research has not been transposed into domestic legislation, which means that, for instance, a new seabird census is long overdue. The Royal Society for the Protection of Birds was able to take that as a complaint to the European Commission, but there will clearly be a different scenario after Brexit.

New clause 28 concerns the enshrining of domestic principles in domestic law, which was referred to by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) and with which I am sure my hon. Friend the Member for Wakefield (Mary Creagh) will deal shortly.

When the Government say that the Bill will ensure that the whole body of existing environmental law continues to have effect, that should mean not just specific substantive obligations but the broad and comprehensive framework in which those obligations are embedded, including the principles that underpin and aid the interpretation of environmental laws—such as the “polluter pays” principle, which states that those responsible for damaging our environment must pay, and the precautionary principle, which states that if there is a suspected risk that a policy could cause severe harm to public health or the environment, we should not proceed with it. Those principles are currently part of the body of EU environmental law in the treaty on the functioning of the European Union, and are also contained in a wide range of legal agreements to which the UK is party. They guide decision making, and provide a basis for legal challenge in court. Richard Benwell of the Wildfowl & Wetlands Trust has said:

“Take out principles like precaution and polluter pays and you rip the heart out of environmental law.”

NC28 would ensure that public authorities carrying out their duties must have regard to environmental principles that are currently enshrined in EU law. Schedule 1 states—the Minister touched on this—that

“There is no right of action in domestic law”

post-exit

“based on a failure to comply with”

EU “general principles”, other than those that have been litigated on by the European Court. That creates a problem. I should be grateful if the Minister could clarify another issue that was mentioned earlier by the hon. Member for North Down (Lady Hermon). “General principles” seem to specifically exclude environmental principles.

When the Environment Secretary gave evidence to the Environmental Audit Committee last week, he said that the principles could best be enshrined in UK law through guidance. Although we know that, in some cases, the precautionary principle has been enforced in the UK courts in relation to planning issues, that does not mean that it would apply more broadly than it does now. What we currently have is not simply guidance. For the principles to have equivalence on exit day, they must be placed in domestic legislation. Laws are binding, but guidance is only guidance. Public authorities must take it into account, but they need not follow it if it conflicts with other priorities.

--- Later in debate ---

[Zac Goldsmith]

I will answer the intervention but, with respect, I do not think that that is directly relevant to the points that we are making. We will engage in talks on a free trade agreement with the United States, and there will be argy-bargy and give and take. My view and—I am so happy to say— that of the Secretary of State is that that will not involve lowering animal welfare standards or environmental standards. Another point to make is that we do not just sign up to European animal welfare standards; our standards are higher in many respects than those applied throughout the rest of the European Union. Our pig standards, for example, are higher than any other country in Europe, and that does come with problems.

[Sir Oliver Letwin]

Exporting cruelty.

[Zac Goldsmith]

My right hon. Friend is correct. While we apply higher standards on our own food producers, we are accepting lower quality imports from other countries, so we are exporting cruelty to those countries, which is a problem. However, there is no question about the commitment of this Government or, indeed, of any party in our politics today—our collective commitment—to maintaining high animal welfare standards. The first campaign that I engaged in, aged four, involved persuading neighbours to let their birds out of their cages, because I could not bear the idea of the cruelty. Few people here are more committed to animal welfare than I am, but I have no concerns in this area, partly because of the assurances from Government and partly because there is a consensus in this place on the issue.

I cannot remember who asked me to give way, but I will not take an intervention whoever it was, which makes—

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Grieve]

That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK’s so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government’s behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome.

Looking back over the history of the charter, I do not think that some of the fears that were expressed—that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg—have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term—the sword of Damocles moment again—the Government must think about it before the Bill has finished going through this House.

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

I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA’s protections?

[Mr Grieve]

That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.

[Mr Grieve]

I agree that environmental law is an area that could do with the scrutiny that I have just outlined.

[Sir Oliver Letwin]

I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative procedure and others, which are technical, will be left over for the negative procedure?

[Mr Grieve]

Yes, absolutely, and that was what new clause 55 sought to achieve, although it did provide the opportunity of looking at purely technical amendments—those would be really technical, and I do not wish to burden the Committee with complete trivia.

--- Later in debate ---

[Sir Oliver Letwin]

In my right hon and learned Friend’s observations about schedule 1, paragraph 3(2), is he referring to retained general principles of EU law or to new ones post Brexit? If he is talking about the retained ones, I have a great deal of sympathy with his position, whereas importing rights of challenge that rely on later developments of EU law would be quite against the principle of Brexit.

[Mr Grieve]

My right hon. Friend is absolutely right and we are completely of one mind on this. I am talking about retained principles—the principles that were seen to exist at the date of exit.

[Sir Oliver Letwin]

I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principles”, “retained general principles”, with similar consequential adjustments?

[Mr Grieve]

I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.

Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.

--- Later in debate ---

[Paul Blomfield]

In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter.

Let me turn to a separate but related point on schedule 1, which states:

“There is no right of action in domestic law”

post exit

“based on a failure to comply”

with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawful” or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period.

Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.

[Sir Oliver Letwin]

On a point of clarification, the hon. Gentleman said that the date on which the retention would end under the amendment would be the end of the transitional period. Did he mean that no new general principles of EU law formulated after that date would apply, or did he mean the retention would end at the end of the transitional period?

--- Later in debate ---

[Dominic Raab]

I will come shortly to my right hon. and learned Friend’s substantive generic point and also touch on the data protection issue he raised.

The Government reaffirm and renew our commitment to human rights law. It is reflected through UK national law, including, most recently, the Human Rights Act, as well as a range of domestic legislation that implements our specific obligations under UN and other international treaties, from the convention against torture to the convention on the rights of the child. Of course, the principal international treaty most relevant to the UK’s human rights laws is the European convention on human rights. I again make crystal clear the Government’s commitment to respecting and remaining a party to the ECHR. There will be no weakening of our human rights protections when we leave the EU.

In fact, we have an opportunity to reinforce and build on our proud tradition of liberty and the protection of rights. We are already in the process of paving the way to ratifying the Council of Europe convention on preventing and combating violence against women, the Istanbul convention. We are leaving the EU, but our commitment to pan-European standards, human rights and the European co-operation in this area remains undimmed. Furthermore, as the my right hon. and learned Friend the Member for Beaconsfield is aware, we will introduce an amendment before Report stage, dealing explicitly with the Equality Act 2010 issues that hon. Members have raised, including by requiring Ministers to make a statement before the House on the consistency of any Brexit-related legislation with the Equality Act.

It is worth reinforcing the point that the charter is not the original source of the rights contained within it. It was only intended to catalogue rights that already existed in EU law. Indeed, I am glad that my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) intervened, because he wisely noted, as recently as 2011, before a European Committee, that protocol 30 governing the application of the charter

“sets out the boundaries around the charter by confirming that it neither creates nor extends any rights to EU citizens outside those that had existed pre-Lisbon, and it emphasises that member states are required to comply only when giving effect to EU law.”—[Official Report, European Committee B, 14 March 2011; c. 5.]

These rights, codified by the charter, came from a wide variety of sources, including the treaties, EU legislation and, indeed, case law, that recognised fundamental rights as general principles. All those substantive law principles and rights, of which the charter is a reflection not the source, will already be converted into domestic law by the Bill.

It is not necessary, therefore, to retain the charter in order to retain such substantive rights. With that in mind, it is right—this deals with the issue that the hon. Member for Nottingham East raised at the outset—for me to reaffirm the Government’s commitment, which the Secretary of State for Exiting the European Union made to the Select Committee, to publish a detailed memorandum setting out how each article of the charter will be reflected in UK law after we leave. I can confirm that we will publish that by 5 December. I hope that that reassures the hon. Gentleman and the hon. Member for Sheffield Central, both of whom raised this point. Let me say to my right hon. and learned Friend the Member for Beaconsfield that I am very willing to continue my dialogue with him on these important matters.

[Sir Oliver Letwin]

Will that report arrive before the Bill’s Report stage?

--- Later in debate ---

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I believe that, taken as a whole, the Bill works and will do what it says on the tin. Indeed, I note that no one has come up with a better plan to extricate us from the EU. Furthermore, the recent Government announcement that we should have a Bill to set out the terms of withdrawal and the implementation period will provide a good opportunity to readdress any legal complexities and tweaks that become necessary—for instance, through the proposals on human rights changing due to EU negotiations. However, the detail is what counts, and I think that this legislation is still something of an unpolished gem.

Clause 5 would change the role of the principle of the supremacy of EU law post Brexit and act as a carve-out to the concept of having retained EU law. Many of the related issues were debated on day one of our Committee proceedings in relation to clause 6. With clauses 5 and 6 in place, once the UK leaves the EU, EU law will no longer be supreme over new laws made by Parliament, and the UK courts will not need to follow European Court of Justice judgments made after exit day. However, it is time for a gripe, Mr Hanson. Ministers’ decision to speak twice on different issues within the same group has been somewhat unhelpful, because it disconnects the various parts of what we are debating. I agree the two groupings might have been preferable, but that was not on offer from the Chair. Having had my gripe, I will now move on.

Amending clause 5 to deal with the requirement of the withdrawal agreement, or even an incompatibility with it, could be activated by use of the Henry VIII powers set out in clause 9, or alternatively by delaying implementation of clauses 5 and 6 using the power in the Bill—a power that the Government currently wish to amend, but which I hope they will not—to set different exit days for different purposes.

Of course, having the position ironed out in the newly proposed implementation Bill could also be an option. This is a likely issue to be considered, as the Prime Minister did, of course, on 22 September, support a transition period, noting that

“the framework for this strictly time limited period, which can be agreed under Article 50, would be the existing structure of EU rules and regulations.”

The Government have since complained that the EU has been slow to talk about an implementation period, which is certainly concerning. It has been described as a wasting asset, but this should not reduce our urgent need to consider how we would actually implement it.

There is no doubt, from reading the views of the significant number of experts, and from what the Exiting the European Union Committee has heard in evidence, that there is some level of confusion about the meaning of clause 5(1) to (3). I hope that the Government will clarify the position, although I have to say that much of the evidence that the Select Committee received was itself conflicting as to its importance. For instance, witnesses queried the intended effect of clause 5(1): is it only a declaratory statement, or is it setting out the position for the retention of the principle in clause 5(2)?

The point is that the relationship between the supremacy of EU law and retained law is not clear to a number of people. As Professor Mark Elliott noted,

“if retained EU law is domestic law, can it inherit the ‘supremacy’ of the ‘EU law?’”

Would retained law under clauses 3 and 4 benefit from the supremacy of EU law as provided for in clause 5(2)? Professor Syrpis backed that up in his written evidence to the Committee:

“The Bill may be handled in various ways; for example Clause 5(4) excludes the Charter, Clause 6(2) states that: courts need not have any regard to anything done on or after exit day by the European Court”

and schedule 1 excludes Francovich damages.

But it remains unclear whether these exclusions relate only to the retention of EU law in UK law, in clauses 2 to 4, and the interpretation of retained EU law, in clause 6, or whether they also apply to the principle of supremacy of EU law, in clause 5. In effect, I have seen enough indecision on this to think that the Minister needs to expand on his interpretation of the supremacy principle.

Of course, if domestic courts decide on the content and meaning of law post Brexit, domestic judges are going to have to respond to the challenge, as I am sure they are very capable of doing. Clearly we should help them on their way, so far as possible, by giving clarity on such issues as scoping the supremacy of EU law, although ultimately they will have to judge—

“judges will simply have to do their best”,

as Lord Neuberger put it. Frankly, I do not see what could be put in the Bill that would make this an easy process for judges in practice. However, as Sir Stephen Laws and Dr Charlotte O’Brien told our Committee,

“there is already an existing principle whereby, when deciding on law, the courts will look at foreign judgements and treat them as persuasive but not binding”.

Professor Richard Ekins took this a stage further and thought that the provision is only there

“to make it the case that no one thinks the judges are doing anything wrong if they read them”—

meaning Court of Justice judgments—

and that

“you could delete the clause and I think the judges would, properly, do the same thing”.

Clause 5(4) exempts the charter of fundamental rights from being converted into domestic law. The first point here is that, whether or not one agrees with the provision, one could ask whether this is the right Bill to insert it into. That argument was made by the hon. Member for Sheffield Central (Paul Blomfield). The Bill is about converting EU law into UK law in order to have a functioning rule book, rather than dealing with policy issues—providing legal certainty rather than reshaping rights. We could have had a stand-alone Bill to deal with that, but I am not convinced that it would have helped the process, or indeed the outcome. In fact, to the contrary, I think that having the benefit of the clause 5 debate running contemporaneously is helpful—if only Ministers had thought the same when grouping today’s amendments.

As for the charter itself, it is a matter of fact that it contains certain extra rights other than those that exist in the Human Rights Act, such as the right to dignity and, as the right hon. Member for East Ham (Stephen Timms) elaborated, the right to protection of personal data. There is also a wider class of potential applicants, because it includes anyone with a “sufficient interest”. Also, stronger remedies are arguably available in certain circumstances, but all that still has to be within the scope of EU law, and I agree with the Government that the charter will lose its relevance after Brexit. However, in the wider context and while it is important to debate the issue, I have strong doubts that we will be losing much by removing the charter if we get the drafting of this Bill right, because many charter rights will form part of the general principles of EU law, as has been explained, and will thereby be retained by clause 6(7) and schedule 1 for the purpose of interpreting retained EU law.

Retention of the charter would also go against the principle of English courts taking control. There may be initial teething problems, but I note that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), told the Exiting the European Union Committee that an EU legal source exists for each charter right, such that judges will be required to look at the underlying source law or rights when considering cases post exit, rather than the charter. However, I am not sure that that is quite adequate, as it seems as though the Bill will contain no right of action in domestic law based on a failure to comply with any of the general principles of EU law and the courts will not be able to disapply any new law because it is incompatible with any of these general principles, including fundamental rights. Amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), would address that by allowing challenges to be brought to retained EU law—law after Brexit—on the grounds that it is in breach of the general principles of EU law.

[Sir Oliver Letwin]

Does my hon. Friend agree that a different amendment—perhaps a Government amendment on Report—could achieve the same purpose by restricting that part of schedule 1 to dealing with non-retained general principles of law, so that retained principles could form the basis for a right of action?

[Mr Djanogly]

Yes, my right hon. Friend made that fair point in an earlier intervention. I am happy to say that I am open and willing to hear what the Government have to say on that, and I look forward to the Minister’s contribution later.

The concept of amendment 10 sounds reasonable to me—not least if we are to get rid of the charter—and I shall be listening carefully. However, I agree that the charter has significantly added to the complexity of human rights applications and that in removing the charter the Bill will provide an opportunity to simplify things outside the EU. The Minister has promised to deliver to the Exiting the European Union Committee a memorandum on charter rights, and I note the idea provided by new clause 16, tabled by the hon. Member for Nottingham East (Mr Leslie), of a report to review the implications of removal of the charter. I would happily accept Ministers’ assurance on that, rather than to legislate for it, and I hope that the document to be delivered to the Committee by 5 December will cover the two issues, as I think the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), said earlier.

My underlying acceptance of the Bill’s position is premised on there remaining, as now exists, a significant and meaningful body of human rights legislation in this country. That would include common law and the Human Rights Act and would be underpinned by the European convention on human rights. I am therefore pleased that the Minister took the opportunity to accept the need for retention of the ECHR in the post-Brexit period.

--- Later in debate ---

[Mary Creagh]

I thank the right hon. Lady for that intervention. Often the simplest sentences raise the biggest alarm bells, because things can be missed if we blink, and substantial rights are engaged in this. The Brexit Secretary said in his speech to UBS last week that the UK would remain

“in all the EU regulators and agencies”

during the transitional period. That leaves us with a further conundrum, because transitional rights are mentioned in the European Commission’s negotiating paper and it says that the ECJ will continue to be able to decide, presumably on Francovich, during any transitional period. The issue of the transitional period is stretching the elastic limits of the Conservative party and of the Cabinet at the moment in terms of which wing of the party is going to succeed, but from the point of view of economic stability and job stability in this country I certainly want to see a transitional period. This Bill raises questions about the loss of those rights if there should be, as we all hope there will be, a transitional period.

The problem is that those rights start to erode as exit day looms, because the incentive to follow the EU directives will be diminished for the Government as they will be let off the hook, given that there will be no retroactive right to sue under Francovich.

Schedule 1 therefore fails the basic test of fairness. For example, if the Government are in breach of an air quality directive, perish the thought, and people are suffering a substantial loss as a result, only those who start legal proceedings before exit day would be entitled to those damages. My amendment 139 would ensure that the right to sue the state and to obtain a remedy under Francovich is still available for those who have suffered that loss or damage before the UK exits the EU. This would allow the victims of a Government failure to uphold their rights that took place before exit to obtain those damages. It would bring fairness to this process, as well as, crucially, legal continuity and legal certainty. Brexit must not be used as an excuse to abolish citizens’ rights and protections under the law. In the referendum my constituents did not vote to reduce their rights, and I hope the Committee will be able to test the matter this evening.

[Sir Oliver Letwin]

I have considerable sympathy with the points just made by the hon. Member for Wakefield (Mary Creagh). Exactly at which point to create which cut-off when dealing with Francovich is a knotty issue, but the idea that people whose rights already exist and who are damaged before exit should be prohibited from pursuing causes that they would have been able pursue now had they had the wit to start them now is pretty offensive to natural justice, and I hope that those on the Treasury Bench will come forward with some adjustment to paragraph 4 of schedule 1.

I mainly wish to dwell on the two other issues that have been raised in this interesting debate, which has been much more of a genuine Committee stage debate than some of the debates, or some parts of them, that we have had in the previous two days’ consideration. The first is on the charter of fundamental rights, where I thought the argument was largely being won by those who argued that it was not productive to have the general principles in that charter brought into UK law, provided that we could satisfy ourselves that case law and statute between them would cover off all the material and substantive rights contained within the charter. I was therefore extremely heartened to hear the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), say that there was going to be a full analysis, which I hope will be sufficient to persuade us all that all the rights are covered off in some other way. If they are, the points that were made about the dangers of judicial activism, which is positively invited by the charter of fundamental rights, would outweigh any advantage to the charter’s incorporation.

Before I come to the main point I want to make about paragraph 3 of schedule 1, I wish to observe, as a slight qualification to some of the things that have been said in Committee, that an element of judicial activism will not only be made possible but actually be required by the Bill, because it refers repeatedly to retained principles and it is impossible for judges to engage in the application of principles without their engaging in judicial activism that goes beyond simply reading the plain face of statutes and the like.

This is all a very grey area. With that in mind, I come to amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and paragraph 3 of schedule 1. His amendment refers to paragraphs 1 to 3, but in my view it refers mainly to paragraph 3. There is currently a great oddity in the way the Bill is cast. I very much hope that not too long from now my hon. and learned Friend the Solicitor General will come to the Dispatch Box and resolve this problem, but it is important to set out the nature of the problem.

Clause 5(2) clearly establishes the principle of the supremacy of EU law so far as the past is concerned. It spells it out in awesome terms, by including the

“disapplication or quashing of any enactment or rule of law”—

if that phrase has any meaning—

“passed or made before exit day.”

Clause 6(3)(a), which we discussed on a previous day, makes it entirely clear, at least in relation to the ordinary operation of the lower courts—my right hon. and learned Friend the Member for Beaconsfield and I are still discussing with Ministers on the Treasury Bench the vexed question of the Supreme Court—that not only retained case law but

“any retained general principles of EU law”

are to be applied by the courts.

It is therefore a strange state of affairs that if we look at schedule 1, we discover that no court or tribunal will be able do the very things that the combination of clauses 5(2) and 6(3) require. No court or tribunal will be able to apply the general principles of EU law to quash or be supreme over any existing UK law. We can have a Bill that says one thing or we can have a Bill that says the opposite, but we cannot properly have a Bill that says in one part of it one thing and in another part the opposite of that thing, so some change is required. That much is, I think, simply a matter of analytical fact.

My preference, which I hope the Solicitor General is going to reflect in his remarks, is for a change of the kind that has come up in various exchanges this afternoon. It is considerably more modest than the rather uncharacteristically complete, sweeping amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. I would simply amend paragraph 3(2) of schedule 1 in such a way as to ensure that it refers to general principles of EU law other than retained principles. At that point, it seems to me, rationality would re-enter the scene, because we would then be saying that after exit day a court in the UK could not use later principles developed by the CJEU—or indeed, while we are at it, any charters or other documents produced by the EU—to overrule English statute, which would of course be a natural and proper consequence of our leaving the EU.

[Sir William Cash]

For the sake of the record, I would be grateful to my right hon. Friend—I nearly said “learned” because he is doing such a great job—if he also looked at paragraph 5, which, in terms of interpretation, does relate to schedule 1 as well, and so cannot be left out.

[Sir Oliver Letwin]

Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment.

Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.

--- Later in debate ---

[Antoinette Sandbach]

I am afraid that the Walker case demonstrates exactly the opposite. Somebody was discriminated against because they were in a same-sex marriage, and the charter guaranteed the partner’s right to the pension. That was not a matter of social policy; it was enforced because of the charter. That is why this debate is incredibly important. There will potentially be some areas that are a matter of policy, but it is important for the Government to go away and look at the amendments because serious points are being made that will affect people’s everyday lives. This is not a debate on principles that do not matter; these are really important, fundamental issues that, as a democracy, we should be looking at in a sensible and reflective way.

[Sir Oliver Letwin]

I entirely agree that there are anti-discriminatory rights contained in the charter. However, does my hon. Friend agree that the issue which is not yet resolved, but which the Government’s analysis may resolve, is whether those rights are already encoded in the case law and the general principles emanating from that case law, and therefore do not need to be in a separate charter for our purposes, or are not yet in the law and therefore would need to be in the charter?

[Antoinette Sandbach]

I do accept that that needs to be looked at. The problem with the sovereignty of Parliament is that we always get to the point where the Parliaments of the future can change and erode these rights. I agree with my right hon. Friend’s earlier suggestion that in due course the Human Rights Act ought to be amended to include the broader category of rights. We are seeing an evolution and a change in our rights, and it is important to reflect that in that Act.

--- Later in debate ---

[The Solicitor General]

I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation.

The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.

[Sir Oliver Letwin]

I am grateful to my hon. and learned Friend, who has just said some of the words that many of us hoped to hear, which is that Government amendments to that effect will come forward on Report. Will that include an appropriate amendment to paragraph 3(1) on the private rights of action?

[The Solicitor General]

Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).

--- Later in debate ---

[Alex Chalk]

This is about not furthering the rights of lawyers, but about how we as a House ensure that there is a corpus of law that is consistent, serves the interests of our constituents and can be considered in an intelligible and consistent way.

My view is that the remedy for this inconsistency is not for us to bring in the charter lock, stock and barrel to apply to all law. We could do that, but it would not work because it would create great confusion respecting the existing European convention on human rights, which is of course incorporated into English law and British law. Instead, the time has come—not today and not tomorrow, but at some time in the near future—to look at granting British citizens a corpus of rights to sit alongside the ECHR, as a written constitution, as it were, that extends the Human Rights Act and allows citizens to apply their rights against any law in this country. The logical next stage is to have what is in effect a written constitution.

[Sir Oliver Letwin]

As a matter of fact, my hon. Friend and I may be the only two Government Members who believe in having a written constitution. I thought I was the only one—

[The Secretary of State for Exiting the European Union (Mr David Davis)]

Three.

[Sir Oliver Letwin]

There are three of us. I am very grateful. [Hon. Members: “Four.”] Let us not count. In any event, the number is small.

Does my hon. Friend agree that, in the interim, it would be a good step if the rights we identify, as a result of the Government’s analysis, as coming out of the charter—the third category rights—should in due course, although not of course in this Bill, be added to the Human Rights Act in a way that at least enables such a degree of entrenchment?

[Alex Chalk]

That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act.

My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.

--- Later in debate ---

[Suella Fernandes]

I am pleased to follow my hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke) on his debut in Committee. I am sure we will all be treated to many more thoughtful contributions based on his experience as a lawyer before coming to this place.

I apologise at the outset, but I will be adding to the chorus of lawyers. There has been an abundance of lawyers—this debate has flushed us out, Mr Hoyle. I must say that I have sat here with nothing but admiration and respect for the very learned interventions and contributions from right hon. and hon. Members on both sides of the House, whose attitude has been to try to improve the Bill. They have obviously been received with a welcome from the Solicitor General, marked by his comments just now.

The issue is not about whether the charter is in or out, and it is not about being pro-rights or anti-rights. For me, it is about whether the Bill, which is designed to provide legal certainty on Brexit day, will achieve that aim or instead create a feast for lawyers, born out of legal uncertainty. The purpose of the Bill is to avoid the overnight evaporation of EU law on the date of our exit by providing certainty and predictability for businesses, individuals and foreign Governments dealing with Britain after we leave the EU.

We want to resolve questions rather than create them, but I do have real concerns. I have great respect for some of the amendments that have been tabled, which have raised many areas of confusion. For example, how would the common-law rules, the Human Rights Act and the charter interact, especially when rights are replicated in the Act and the charter but are interpreted by different courts? We have identical rights interpreted in one way by the Strasbourg Court and in a slightly different way by the Luxembourg Court. That only provides for inconsistency and confusion. What is the position for rights that appear in one document but not the other? What is the position for rights that are in the charter, but will be rendered completely futile as a result of Brexit due to their extensive references to the EU and other EU institutions?

More concerning is the confusion created by the remedies provided in the charter and the role of the Supreme Court and the European Court of Justice. The Human Rights Act contains protections for people in many ways: the right to a fair trial, a right to life, a right to a private life and family life, and the right to be free from discrimination. We in Britain should be proud of that document. Under the Act, the Supreme Court can make declarations of incompatibility in the event of a breach. That power is limited, as a reflection of the role of the Supreme Court in our constitution and the particularly fine balance between the judiciary and our legislature—that hard-won principle of parliamentary sovereignty.

That is not an obscure notion to amuse academics. It is the key foundation of our country’s governance that in this place, in this elected Chamber, we elected representatives have the final say on what rights people are afforded, what restrictions they are subject to, what remedies they can invoke and what responsibilities they owe. That is what our job is here in Parliament. We are elected and are subject to transparency. We are accountable and we can be kicked out if necessary. Judges, in comparison, are unelected. They are, of course, expert and robust in their integrity, but they are often unknown and are away from the glare of publicity. They are not answerable directly to the public in the way that elected representatives are. That is the importance of parliamentary sovereignty and the judicial deference enshrined in, and running through, the Human Rights Act. Only in cases of ultra vires and judicial review will UK courts make such a declaration. In the event of a declaration of incompatibility, there is no obligation on Parliament or the Government to agree to make changes, but often they will respond by amending legislation to align with judgments from the courts—for example, under section 10 of the Human Rights Act. That fine balance is important to ensuring the ultimate accountability of us rule makers and legislators.

I believe that the principle of parliamentary sovereignty could be undermined by the remedy in the charter for disapplying statute, as we saw in the case of Benkharbouche in the Supreme Court last year. The effect is to disregard the relationship between the judiciary and the legislator and to render our Supreme Court more of a constitutional court than an appellate court, which interprets the law rather than declaring what the law ought to say.

Further uncertainty is caused by questions around the potential horizontal application of the charter—between individuals rather than between the state and an individual, as is the position in the Human Rights Act—and questions persist on its application to anything within the scope of EU law as opposed to the implementation of EU law. For me, those principles are not yet clarified and would only create more confusion, if the tabled amendments were to be passed. As I said, this is not about being in favour of or against rights; this is about providing a workable regime, rather than one fraught with confusion and at odds with fundamental principles.

We must not forget that the charter was not originally intended to be the source of rights for the UK. It was meant merely to codify existing rights, as an instrument of the EU, through the interpretation of the ECJ.

[Sir Oliver Letwin]

I think I agree with everything my hon. Friend has said. Does she agree that it would nevertheless be possible to put these rights under the umbrella of additions to the Human Rights Act and thereby enshrine them without creating a role for the Supreme Court to strike down Acts of Parliament?

[Suella Fernandes]

In principle, that would be possible, but I pray in aid the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just entered the Chamber, and who eloquently explained that there is no substantive need to do that because those rights are protected in existing legal frameworks or the common law.

As I was saying, the charter is an instrument of the EU for allowing the activism of the ECJ. It is a mechanism intended to ensure the supremacy of EU law in national legal orders, as is made clear in the preamble and in the recent case of Siragusa v. Regione Sicilia, in which it was made clear that the primacy of EU law was the priority. If we are truly leaving the EU, it no longer makes sense for us to be bound by a document that is furthering EU integration.

I appreciate the constructive attitude of all colleagues in attempting to help the Government to improve the Bill, but I gently caution against the risks presented by some of the amendments. The British people voted last year to restore sovereignty to UK courts and return supremacy to our judges, because they trust our legal order. Why do they trust it? They trust it because for centuries, since 1215 and Magna Carta, this country has been the home of civil liberties and human rights and has protected the vulnerable against excesses of power. That is a tradition of which we are proud and which will be protected under this Government.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

[Mr Leslie]

Yes. All hon. Members, not just the Government—there are such hon. Members even on the Labour Benches—will want to commit public resources to all sorts of things, and they need to recognise that if the cost is £60 billion, that is not something to be sniffed at. In a couple of years’ time the deficit is projected to be about £30 billion a year, so we are talking about the equivalent of two years of deficit to be added, presumably, to the national debt at that point in time. That is all notwithstanding what happens to our wider economic circumstances. These things should not just be dismissed.

We should be putting the House of Commons at the centre of this process and not treating it as a peripheral part of the Brexit arrangements. That is why this new clause is so important. Brexit is a costly exercise and Parliament needs to have the chance to properly reflect on it. A potential divorce bill of £1,000 for every man, woman and child in this country certainly should not just be brushed aside. When we ask ourselves what we are getting for this arrangement, we see that we are getting the chance to rip up the finest free trade agreement—a frictionless, tariff-free agreement—of anywhere in the world, for the chance to have something inferior. The current path we are on is not about taking back control; this is about losing control. The idea that Parliament should simply step to one side and agree to have control taken away from it is not acceptable to me and to very many hon. Members. This new clause would at least drag Brexit back into the sunlight and let the public hold those responsible to account.

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

With his customary eloquence, the hon. Member for Nottingham East (Mr Leslie) has given a splendid speech about many things. I wish to divert slightly from his path by taking his new clause seriously as a legislative object, rather than engaging in the interesting questions he raised about the utility or otherwise of the whole of Brexit. The Committee is called upon to decide whether proposed amendments to the legislation are meritorious in terms of achieving the objects of the Bill, and that is what we have done in Committee on many other occasions as we have gone through the Bill.

It is obviously right that Parliament should control public expenditure. The withdrawal agreement will be an element of public expenditure, so one might think that new clause 17 was meritorious. However, it is clear that the payments that the new clause describes will, if they arise at all, be part of an agreement. The Government, rightly, have already said that Parliament will have a vote on the agreement. We cannot vote on an agreement without voting on the financing of an agreement, because the agreement will stipulate the financing. Therefore, new clause 17 is entirely otiose and there is no reason for the House to vote in favour of it. The House should reserve its voting for a later moment when the Government introduce the amendment to allow us to control the agreement, which I shall certainly support.

[John Redwood (Wokingham) (Con)]

I think the Government have gone further. They have said that if there is an agreement, primary legislation would probably be needed to implement it, which means that the full procedures for statutory approval would be required in order for there to be the power to make any payments—as I understand it, there are no legal grounds for making additional payments to the EU, and if the Government wish to do so, they will need legal grounds—and then to cover the full implementation of the agreement.

[Sir Oliver Letwin]

As so often, my right hon. Friend snatches the next words from my mouth. I was about to say that the House will, as he rightly observes, be called on to vote on primary legislation, as we understand it, which will of course require something called a money resolution, with which I know the hon. Member for Nottingham East is fully familiar because I have heard him make long speeches about them on several occasions. He is an expert at doing so, and no doubt he will enjoy doing so again when the relevant resolution comes before the House, but new clause 17 is not necessary to achieve the objective.

[Mr Leslie]

The right hon. Gentleman makes a fair point about wanting to probe the details of the new clause, which is specifically about amounts of money paid out without authorisation. He must agree that despite their name, money resolutions do not always specify a sum of money. A draft withdrawal agreement would not necessarily have to set out the amount of money, either. If he has heard otherwise from the Government, I would be interested to know.

[Sir Oliver Letwin]

I do not think there is the slightest chance that a withdrawal agreement will be put before the House that does not specify, or enable one to calculate, an amount of money, because there is no indication that the EU would accept such a thing. Whether or not we should be paying such an amount is a separate matter. In any event, as my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) just said from a sedentary position, if that is a deficiency of a forthcoming money resolution, it is a deficiency shared by new clause 17, which also does not stipulate anything about an amount. One way or the other, I fear that the new clause is otiose. It has given an admirable opportunity for the hon. Gentleman to make an interesting speech, but that is its only virtue. The House should have nothing further to do with it.

[Jenny Chapman]

It is a real pleasure to be called to contribute. I wish to speak to new clause 80 and amendments 339 and 340 in my name and the names of my right hon. and hon. Friends.

New clause 80 would require a vote in the House on the financial settlement that the Government agree with the European Union. Further, it would require the House to be informed in its decision on that matter by reports from the Office for Budget Responsibility and the National Audit Office. Amendments 339 and 340 would prevent tax or fee-raising powers from being established via tertiary legislation and limit any fees that are levied by public bodies to the cost of the service that the fee is intended to cover.

I should start by referring Members to the third report of the House of Lords Delegated Powers and Regulatory Reform Committee from September, which examined the Bill before us today. The report draws our intention to the fact that the delegated powers memorandum notes that those powers would enable

“the creation of tax-like charges, which go beyond recovering the direct cost of the provision of a service to a specific firm or individual, including to allow for potential cross-subsidisation or to cover the wider functions and running costs of a public body.”

The report alerts Parliament to the danger of allowing organisations full-cost recovery of their services without parliamentary scrutiny as it could allow them to gold-plate the services that they offer. As the report says:

“A tax-like charge means a tax.”

And it

“should not be allowed in subordinate legislation. They are matters for Parliament, a principle central to the Bill of Rights 1688. Regulations under clauses 7 and 9 cannot impose or increase taxation.33 But regulations under Schedule 4 may.”

The report goes on to make the point that that means that Ministers can tax. They can

“confer powers on public authorities to tax and they can do so in tertiary legislation that has no parliamentary scrutiny whatsoever.”

New clause 80 also addresses this issue of a lack of parliamentary oversight. As we all know, the Government are in the process of attempting to conclude the first phase of negotiations with the European Union. Part of that process is agreeing a financial settlement, which reflects the obligations that the United Kingdom has incurred as a result of its membership of the European Union. Labour has always been clear that Britain should meet its obligations. We cannot seriously hope to make new agreements on the international stage if we are seen to go back on what we have already agreed. Britain is a far better, fairer and more reliable ally than that.

As the Chancellor said when he attended the Treasury Committee today:

“I find it inconceivable that we as a nation would be walking away from an obligation that we recognised as an obligation.”

He continued:

“That is just not a credible scenario. That’s not the kind of country we are and frankly it would not make us a credible partner for future international agreements.”

On that, we are agreed. But we have also been clear that the deal must be fair to the taxpayer. Already the Government are attempting to bypass the scrutiny that should take place in this Chamber. This money belongs to the UK taxpayer and they have a right to know how much, and for what they are paying. It is true that the public interest in discovering more about the financial settlements that the Government intend to make with the EU is great, and that there will inevitably and rightly be extensive media coverage. The details, some certain and some speculative, will be pored over by commentators. Estimates will be made and objections proffered on the basis—sometimes, I venture to say—of inaccurate or incomplete information. That is not a satisfactory way to proceed. The House must get a grip of this process and demand the ability to scrutinise and take a view on the deals reached.

Our new clause argues that this House should have a vote, and also that the vote should be properly informed. Being properly informed means that independent analysis by the OBR and the NAO must be provided to assist this House in its consideration of the deal. We are going to need that, because the financial settlement will not be straightforward, and unvarnished truths will be hard to come by. Crudely speaking, the Government will try to make the amount look as reasonable as possible and the EU will try to show that it has everything that it thinks it is due.

The Government will want to highlight estimates that show how payments will be less than half the €100 billion liability, once UK projects have been taken into account. As Alex Barker in the Financial Times put it last week:

“Ministers are banking on Treasury budget wizards making the exit price look as small as possible.”

The two sides in the negotiation could look at the same agreement and come up with net estimates that are quite different.

--- Later in debate ---

[Stephen Timms]

My hon. Friend is absolutely right. We come directly to that point in amendment 153, in which we propose to add to schedule 4 the words set out on the amendment paper, which I shall read out. We propose to constrain Ministers’ powers by saying, first, that regulations

“may not be made for the purposes of…creating a fee or charge that does not replicate a fee or charge levied by an EU entity on exit day”.

That is exactly the point my hon. Friend has just raised. We of course recognise that a lot of charges are imposed at the moment by EU bodies of one sort or another—she mentioned a very important one—and that, in future, comparable fees or charges may well need to be levied by UK entities, but the aim of the first paragraph of amendment 153 is to make it clear that Ministers cannot impose new fees or charges for which there is not already a counterpart from the EU entity.

[Sir Oliver Letwin]

The right hon. Gentleman is doing exactly what needs to be done in Committee, and I have considerable sympathy with his ambitions. Has he considered whether the reference to remedying deficiencies as the basis for secondary legislation powers under the Bill would in any case have the effect he is describing?

[Stephen Timms]

I had not considered that, and the right hon. Gentleman may well have a point. I would be interested to know whether that is indeed the case. That interesting point is certainly worth pursuing, and I would welcome it if he expanded on that later.

Secondly, amendment 153 states that Ministers cannot bring forward regulations for the purpose of

“increasing a fee or charge to an amount larger than an amount charged by an EU entity for the performance of the relevant function on exit day.”

Let me take the example my hon. Friend the Member for Bishop Auckland (Helen Goodman) mentioned. The European Medicines Agency does very important work, and it charges the industry for that work. I am suggesting that the secondary legislation powers in schedule 4 should not be used to introduce a charge for the same function that is higher than the one currently charged by the European Medicines Agency. There may well be a loss of economies of scale in leaving the European Medicines Agency, and it may well be that undertaking that function purely for the UK will be a less efficient process than doing it EU-wide, as the European Medicines Agency does, but I do not think the secondary legislation powers in the schedule should be used to impose on industry or any charge payer a fee that is higher than the one currently charged by the EU entity.

I accept that there may well in due course need to be some higher fees or charges than those currently levied by EU entities, because the process may well be less efficient when carried out at a UK-only level, but I do not think the secondary legislation powers should be used for that purpose. If Ministers want to bring forward a proposal to impose a higher fee or charge, they should do so through the proper parliamentary process, with scrutiny by this House, not through secondary legislation powers.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

[Mr Leslie]

We are putting a lot of effort into trying to get free trade deals with New Zealand, Australia and other countries, and much as I would love free trade deals with all of them, the fact is that our biggest markets are our nearest neighbours. Having that single market and that customs union is incredibly important, which is why amendment 124 should not be dismissed and I believe Members should support it. We also need to pay attention to the powers and rights that Parliament must now assert if we are to ensure that the Executive do not take back the control that many of our constituents thought was coming to their representatives after the referendum.

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

As always, I am lost in admiration for the extraordinary eloquence of the hon. Member for Nottingham East (Mr Leslie). It is unfortunate that he has a tendency, as he exhibited on this occasion, to be so carried away by his eloquence as to take arguments that many Government Members also consider important and extend them to the point where they become definitely untrue. This diminishes the force of those arguments. I believe that the Bill is over-drafted—for some of the reasons that he adduced, to give the Government greater scope for dealing with a whole series of problems, in a way that the civil service often recommends to Ministers—but it is not the case that it offers the unconstrained powers that he was suggesting. His world is a world without a Supreme Court, and without judgments of the meaning of deficiency. He alleged that the meaning of “appropriate” was entirely obscure and then used it, by my count, five times himself. We all knew what he meant and so would a court. One does not need to go to the extents to which he was going to point out that the Bill requires some amelioration in respect of the secondary legislation powers, a point which many Members on both sides of the Committee made during an earlier debate. He could have rested with that, which would have taken rather fewer minutes.

I look forward to hearing from my hon. Friend the Member for Broxbourne (Mr Walker), the Chairman of the Procedure Committee, because unlike the hon. Member for Nottingham East I think that amendment 393—if I remember the number correctly—is carefully judged. I think it probably will provide—[Interruption.] I apologise for getting the number wrong; I was referring to amendment 397. In any case, the Procedure Committee’s amendment seems to be the right way to tackle the question of triage, and it is well judged and well drafted. I hope that Ministers will tell us in their responses from the Dispatch Box that recommendations from the Procedure Committee will in this instance always be respected in the House. I do not think that we need to worry about a completely separate set of Ministers dealing with the recommendations, because the recommendations will be made in the coming months. We need a combination of that amendment plus an assurance from the Dispatch Box that the Procedure Committee’s recommendations will be observed, and I think we could rest on that.

[Chris Bryant]

I just worry about this whole business of relying on the Government saying that they will always go by a recommendation that comes from a Committee. Several times I have heard Ministers stand in the Chamber and say that if the Opposition demand a vote on the annulment of a Standing Order, there will always be one. However, over the past few years, there have on repeated occasions been no debates or votes, even when demanded by the Opposition and a large number of Government Members. It is almost sweet of the right hon. Gentleman to place such confidence in Ministers, but they are sometimes not to be trusted. We just put temptation in their way.

[Sir Oliver Letwin]

The hon. Gentleman is a doughty defender of his party interest and of the House of Commons. On this occasion, if such an assurance is given from the Dispatch Box and if the advice of the committee is not followed, people on both sides of the House will cause a sufficient fuss to ensure that the House does have the opportunity to debate instruments under the affirmative procedure.

[John Redwood]

Will my right hon. Friend clear up one other uncertainty created by the hon. Member for Nottingham East (Mr Leslie)? Is it not the case that the powers that we are debating are strictly time limited to two years from the date of departure? This is not a long-term issue.

[Sir Oliver Letwin]

One of the most striking moments of hyperbole was when the hon. Member for Nottingham East asserted that the situation would last for many years. He will of course know, as my right hon. Friend the Member for Wokingham (John Redwood) points out, that the provisions are sunsetted.

[Chris Bryant]

Unfortunately, that is not true because the Government are able to change the Act by statutory instrument.

[Sir Oliver Letwin]

Except of course it is, because if the amendment is accepted, as the Government intend, the committee will be empowered to make a recommendation to have something debated by the affirmative procedure in the House should such an eventuality arise. In those circumstances, if we have an assurance from the Dispatch Box that something will be so debated, the hon. Gentleman and I will be able to join forces to prevent such a thing from happening. That is a genuine lock, and this debate depends on whether we want to engage in party political games or whether we want a serious approach to ensuring ministerial accountability. Amendment 397 is serious, and my hon. Friends and I are keen to ensure that its changes are made. I note that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has also put his name to the amendment, which gives me great comfort that it is a serious effort to cure the problem.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

On the point made by the hon. Member for Rhondda (Chris Bryant) about amending the Act, which I will refer to in my own speech, I just want to draw the Committee’s attention to paragraph 6 (2)(g) of Schedule 7. For us to amend the Act, any change would have to relate to the withdrawal agreement and its implementation and would be subject to a vote in both Houses.

[Sir Oliver Letwin]

That is indeed true. I suppose that Opposition Members would tend to argue that only the courts could enforce that, which is an oddity with the principle of comity, but I think we are dancing on the heads of pins here. I am confident that the Government do not intend to use that power to get rid of the constraints within the Bill. I am equally confident that the serious issue here is whether significant changes are proposed by the negative procedure and, I repeat, the Procedure Committee amendment seems to handle that serious issue, which is in contrast to the highly hypothetical considerations that have already been put before the Committee.

Amendments 62 and 63 were, in a different form, the subject of some serious discussions earlier in Committee. They relate to how we bring the important environmental principles in the treaty on the functioning of the European Union into English law at the time of withdrawal and to how we replace the useful role that the Commission has played in being an independent enforcement agency for environmental law that is governed by those principles in its procedures and substantive actions.

[Helen Goodman]

Is the right hon. Gentleman referring to new clauses 62 and 63 or amendments 62 and 63?

[Sir Oliver Letwin]

New clauses 62 and 63. I do apologise. I am very bad at remembering the nomenclature, but I know which ones I am talking about. They are the ones that relate to the environment—their proponent, the hon. Member for Wakefield (Mary Creagh), is sitting behind the hon. Lady—and we had a long discussion about them earlier in Committee. Since those discussions inside the House, many of my hon. Friends, including my hon. Friend the Member for Richmond Park (Zac Goldsmith), and I have had considerable conversations outside the House with various people, such as the Secretary of State for Environment, Food and Rural Affairs, green non-governmental organisations and others. I am now confident that the Government will bring forward proper new primary legislation to create an independent body outside the House with prosecutorial powers that will replace the Commission as the independent arbiter to enforce environmental rules and to ensure that the Government are taken to task in court without the need for the expense of class action lawsuits.

[Caroline Lucas (Brighton, Pavilion) (Green)]

rose—

[Sir Oliver Letwin]

May I continue for a second? I may anticipate what the hon. Lady is going to say, but I will give way if I do not.

In addition to such a body being put on a statutory basis, I am confident that included in the relevant legislation will be a direct reference to the principles, so that it is clear that the policy statement, which will be mandated, must look to those principles and must explain how the Government of the day intend to carry forward the principles into action. The policy statement will then become justiciable and will, under the forthcoming legislation, receive support in the form of a resolution of this House and will therefore attain a statutory force of its own.

[Caroline Lucas]

rose—

[Mary Creagh]

rose—

[Sir Oliver Letwin]

I will give way to both hon. Ladies, but I will just say one last thing in case they were going to make this point. Many people have raised the question of whether all this work will be done in time—I see the hon. Member for Brighton, Pavilion (Caroline Lucas) nodding and I suspect that she will want to raise that point—and I see that if there was doubt about whether it was, that would be a reason for legislating here, as opposed to waiting for a proper new statute. I am delighted to say that we have talked sufficiently to Ministers to be confident that they will be bringing forward both the consultation and the legislation in time to ensure that it is in place before we exit the EU. Of course, I would also want to wait until January to see the consultation to ensure that that engagement is fulfilled, and I am sure that the other place will want to look at what is said in the consultation and to assure itself that the new statute is coming forward before it consented to allow this Bill to proceed without the amendments that are being proposed. I believe that the right way to do this is in separate legislation. It is not about this business of Brexit; it is about trying to get the right answer for the environment. It is much better that we should do that in a fully fledged Bill that will be properly debated and contains all the relevant provisions and powers, which will never shoehorn into this Bill. I genuinely believe that that is the best way forward.

--- Later in debate ---

[Sir Oliver Letwin]

I do not suppose that I will succeed now in persuading the hon. Lady. I do not wholly disapprove of the idea of her and others pursuing aggressive amendment tactics here and in the other place to ensure that the Government continue to respond effectively and rapidly. Once the consultation paper emerges and the Secretary of State has made further statements about this, and once legislative time has been allocated in the Parliamentary Business and Legislation Committee, assuming it is still called that, we will have that confidence. I would prefer to rest on that, because it would be at the least inelegant and possibly positively damaging to pass one piece of legislation and then introduce another that repealed or amended it. That sounds to me like a recipe for confusion.

Should we become sceptical at a later date about whether the Government will bring separate legislation forward, it would be open to the House of Lords to table amendments in the other place, which would come back to us. I, for one, would want to see those amendments made if the Government did not intend to put something in place before EU exit day. I am currently confident that they will, and that is the only basis on which I will not be voting for the new clause this evening.

[Mary Creagh]

I do not share the right hon. Gentleman’s confidence that all this will be done in time, and I share the concerns of the hon. Member for Brighton, Pavilion (Caroline Lucas). We have been waiting two and a half years for a 25-year environment plan, which will be a 22-year plan by the time it is published. We have had promises of legislation on fisheries and the common agricultural policy, and today a draft animal sentience and animal welfare Bill has been published. There is already a legislative logjam in the Department for Environment, Food and Rural Affairs as a result of the decision to leave the EU, and at the moment there is a reporting gap. Although there may be a new body in the future to do some of the enforcement, I do not believe that it will be up and ready at the point of leaving, when all our reporting obligations, which currently rest with the European Commission, will fall.

[Sir Oliver Letwin]

There are quite a lot of bits to unpack in that. If we were to leave without an agreement and hence without a transition period, there would be some merit in her observation, although the gap would be short if the new body had been legislated for by the time we left. If the Government’s plan succeeds and there is a transition period, we will no doubt be bound by the current rules during that period so there would be two full years in which to establish the new body. It is not likely that the hon. Lady’s concern on that front will be realised in practice, although I admit some theoretical possibility of it.

The hon. Lady adduces a legislative logjam in DEFRA. I accept the facts that she presents, but I see them exactly the other way round. We have a Secretary of State for Environment, Food and Rural Affairs who is probably the most powerful one we have had for a long time, for various reasons of which hon. Members on both sides are acutely conscious. He is probably more committed to this agenda than any we have seen in recent times in either Administration—[Interruption.] I am conscious that the right hon. Member for Leeds Central (Hilary Benn) will inevitably cavil slightly at that, and I respect his record. I genuinely believe that the current Secretary of State is even more devoted to the environment than he was.

An awful lot of DEFRA legislation will inevitably have to be brought to the House before exit. No Environment, Food and Rural Affairs Secretary and no Government could resist it. One cannot exit the EU without solving the problems of the common fisheries policy and the common agricultural policy so there is a natural legislative slot, and this powerful Secretary of State will be more than capable of bringing before the House the relevant statutory provisions. They will not be simple; they will require mature deliberation in both Houses. I am sure we all agree that it is incredibly important that we get the provisions exactly right. We need to make sure that it is a genuinely watertight system, with a set of policies that apply, that the court will enforce and that can be brought to court by an independent body. We need to ensure that the independent body is genuinely and completely independent of the Government, that it can bring Ministers to court, that it is properly funded and staffed and that it looks at the way in which the principles are applied through the policy statement in practice.

I believe that if all that can be done in a proper statute, it would be not just a replication of where we have been, which is now much lauded but was in practice very imperfect, but a huge advance on that. We would have a more comprehensive enforcement of a better environmental legislative framework than any country on earth. That is a goal worth striving for in a proper Act, instead of trying to shoehorn into this Bill a set of new clauses and amendments that are well intentioned but cannot perform the same purpose.

[Zac Goldsmith (Richmond Park) (Con)]

My right hon. Friend makes a brilliant speech. [Laughter.] I cannot disagree with a single word that he has said. I strongly agree with him. The main sticking point is not the aspirations of the Secretary of State to build an independent body that is sufficiently resourced to hold the powerful to account in the way that he has described. The issue is timing and trust. Exactly the same arguments were used just a couple of weeks ago in relation to animal sentience. Sceptics in the House questioned the commitment of the Government to deliver a sentience Bill and said that if it was delivered, it would be a watered down version. We have proof this morning of the Government’s intent; we have a sentience Bill that goes way further than anything in EU law. It applies to all animals, all sectors, all parts of government. It takes us forward in a dramatic and meaningful sense, and that is what I hope we can expect from the initiative of the Secretary of State. I apologise for speaking for so long.

[Sir Oliver Letwin]

I agree with my hon. Friend. He is being unduly modest, because in large part it is due to pressure from him that the Government have introduced such an effective and incisive Bill in a timely fashion. I agree that that gives us considerable confidence about what will happen on this other, even wider ranging matter.

[Caroline Lucas]

I am pleased to see the change on animal sentience, but to correct the hon. Member for Richmond Park (Zac Goldsmith), the debate a few weeks ago was about whether we needed new legislation to provide for animal sentience when we left the EU. The Minister stood at the Dispatch Box and said that we did not need new legislation as it was already covered by existing UK domestic legislation. So I am pleased to see a screeching U-turn, but let us not pretend that it was not a screeching U-turn.

[Sir Oliver Letwin]

I have steadfastly resisted for 21 years engaging in meaningless partisan debate, and I am not going to abandon a career’s worth of effort in that direction to answer that point. Animal sentience is built into English law in various ways already, but the new Bill will vastly strengthen the position compared with what it is today under European law. That is a huge advance for our nation, one that many people on both sides of the House can be happy with. As my hon. Friend the Member for Richmond Park was pointing out, there is an exact parallel with what we and the Government are seeking to do in relation to environmental regulation. I really believe that if we could lay aside both the inevitable divisions about Brexit itself and the inevitable play of party politics, and simply focus on what is going to do the best thing for our environment, we would see that the programme we have before us is a huge advance and one we should gratefully welcome.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Laing, and to follow the right hon. Member for West Dorset (Sir Oliver Letwin). I rise to speak to new clauses 63 and 1, amendments 32 and 25, which stand in my name and those of my right hon. and hon. Friends, and amendments 342, 333, 350, 334 and 33 to 41.

For the purposes of clarity, I intend to break my remarks down into three parts. I will first speak to those new clauses and amendments that relate to the purpose, scope and limits of clause 7. I will then turn to those that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities. I will finish by turning to new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers provided for by not only clause 7, but clauses 8, 9 and 17.

I turn first to the purpose, scope and limits of clause 7. As I said when winding up for the Opposition in the debate on Second Reading, the delegated powers conferred on Ministers under clause 7, and clauses 8, 9 and 17, are extraordinary in their constitutional potency and scope. They are, to put it plainly, objectionable and their flaws must be addressed before Third Reading. As such, when it comes to the correcting powers provided for by clause 7, what we are debating is not whether there is a need to place limits on these powers—that, I hope, is beyond serious dispute. What is at issue today, and what I intend to cover in the first part of my remarks, is what limits should be placed on these powers and why.

Just as the Opposition accept that the Brexit process requires legislation to disentangle the UK from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave, we also understand, in light of the legislative reality that must be confronted between now and exit day, that no Government could carry out this task by primary legislation alone. We therefore accept that relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary are, and will be, an inevitable feature of the Bill. Given how much EU and EU-related law has been implemented through primary legislation, we also recognise that the Bill will have to contain Henry VIII clauses. We appreciate that there is a difficult balance to be struck between the urgency required to provide legal continuity and certainty after exit day and the equally important need for safeguards to ensure we maintain the constitutional balance of powers between the legislature and the Executive.

We also believe, however, that to the extent that relatively wide delegated powers are necessary, they should not be granted casually and where they are granted they should be limited, wherever possible, and practical. That is particularly important given how remarkable the correcting powers provided under clause 7 are in their potency and scope. On their potency, it is important to recognise that the Henry VIII powers contained in clause 7 are of the most expansive type. As has already been noted by my hon. Friend the Member for Nottingham East (Mr Leslie), clause 7(4) makes it clear that the power granted by subsection (1) can be used to enact regulations that make any provision that could be made by an Act of Parliament, and clauses 8(2) and 9(2) make equivalent provision in respect of the powers conferred by both those clauses.

These are extraordinary powers, for if it is possible for regulations made under clause 7(1) to make any provision that could be made by an Act of Parliament, that must extend logically to amending or repealing any kind of law, including provisions in other Acts, in the context of wide-ranging purpose of the clause: to remedy any deficiencies that arise in retained EU law. Furthermore, paragraph 1(2)(8) of schedule 7 explicitly confirms that the powers in clause 7 can be used to create powers “to legislate”. As the powers can be used to do anything that could be done by Act of Parliament by means of subsection (4), the Bill itself can be used to create further Henry VIII powers. As such, if this Bill is passed unamended, we face the prospect of Ministers—perhaps not this Minister or Ministers in this Government—having the ability to use the Henry VIII powers in this Bill to confer further such powers upon themselves or other UK institutions; we are talking about delegated legislation piled on top of delegated legislation. That is an outcome that no Member of this House should regard as an acceptable prospect, but it is possible using the powers conferred under clause 7, as drafted.

--- Later in debate ---

[Matthew Pennycook]

That is precisely our concern. We discussed that at length on day 2 in Committee, when we were talking about the need for enhanced protection for retained EU law because it will be stripped away from its underpinnings in EU law post-exit.

A further concern about the language in clause 7(1) is that, given how wide clauses 2, 3 and 4 are in respect of what will come under the umbrella of retained EU law, Acts of Parliament that are linked to EU law, such as the Equality Act 2010, will be susceptible to change by statutory instrument under the clause. That would be an entirely unacceptable situation. There are many different ways in which the constitutional potency and scope of the correcting powers provided under clause 7 can be circumscribed, and we support many of the amendments tabled to the clause that share that same basic underlying objective.

Amendments 32 and 25 are the means by which my right hon. and hon. Friends and I have attempted to limit those correcting powers. Amendment 32 would diminish the potency of the delegated powers in the clause by removing the ability to modify or amend the Act itself. I listened to what the Minister said about the schedules and how they dictate things, but I would argue that there seems to be a difference—if Members wish to direct their attention to it, this is on pages 39 and 43 of the Bill—between the process that applies to clause 7 and that which applies to clause 9, with respect to whether a vote in the House would be required for Ministers to amend the Act itself. Perhaps the Minister will elaborate further on that in his response.

Amendment 25 would reduce the scope of the powers by constraining their capacity to reduce rights and protections, while amendments 350 and 334 would buttress amendment 25 by putting specific limits on the powers in question by requiring Ministers to pay full regard to the animal welfare standards enshrined in article 13 of the treaty on the functioning of the European Union and to guarantee that the air quality standards and protections that are currently underpinned by EU law are maintained in practice following our departure.

Given how widely drawn the powers in clause 7 are, coupled with their potency and scope and the inherent subjectivity of the language in subsection (1) in key respects, ministerial assurances and promises to go away and have a cosy chat, as we have had on other days, are not good enough in this instance. The powers entail a significant transfer of legislative competence from the legislature to the Executive and open up the real possibility of substantive changes being made in policy areas that previously were underpinned by EU law. Restrictions on the powers must be placed in the Bill, whether through amendment 32 or 25, or some other combination of amendments. I look forward to hearing from the Minister not only that the Government now accept as much but what they intend to do about it.

On the new clauses and amendments that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities, Ministers have been at pains to point out throughout this process that many of the corrections to retained EU law made under the correcting power in clause 7 will be mechanistic, textual or technical in nature. That will undoubtedly be the case, but many others will not be. As other Members have noted, the powers in clause 7 allow for not only the creation of new UK public authorities using the affirmative procedure but the transfer of EU regulatory functions to existing UK institutions using the negative procedure. However, in neither case does the clause 7 power as drafted ensure that retained EU law will be made operable in ways that replicate and maintain, in so far as is practical, all the existing powers and functions exercisable by EU entities. As a result, the clause does not guarantee that the powers and functions of entities such as the EU Commission or other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day.

Amendment 342 would address the problem by making it clear in the Bill that regulations to which subsection (5) applies must, again in so far as is practical, ensure that the standards, rights and protections currently maintained by EU institutions, or other public authorities anywhere in the UK, continue to exist in practice after exit day and that the UK competent authorities that are overhauled or created for that purpose have the resources, expertise and independence required to carry out their task effectively. That they do so is crucial not only for legal certainty and continuity and to ensure continued confidence in UK products and services, but as a guarantor of stability and redress for citizens and civic bodies in key areas in which there is a clear risk that Brexit will leave a governance gap.

The need for such an amendment is particularly important when it comes to the environment. I take the point made by the right hon. Member for West Dorset that we discussed this matter in Committee at length on other days. Of course, it relates intimately to the environmental principles, although they are outside what is covered by clause 7. We have tabled new clause 63 to require the Government to establish new domestic governance arrangements, following consultation, for environmental standards and protections and, crucially, to ensure that the new arrangements provide robust enforcement mechanisms when environmental requirements and standards are not met.

The Government’s thinking about this policy area has clearly moved on from their early insistence that existing regulatory bodies, parliamentary scrutiny and the use of judicial review alone would be sufficient to provide oversight of Government and public body conduct. The pledge by the Secretary of State for Environment, Food and Rural Affairs to create a new environmental watchdog and to consult early in the new year on its scope, powers and functions is welcome, but as things stand we have no clear indication of the watchdog’s scope, powers and functions; no clarity on whether the Government are seeking agreement with the devolved Administrations with a view to implementing similar measures in their jurisdictions; and no sense of whether or not the watchdog will be able to levy credible sanctions or provide for effective enforcement of breaches.

[Sir Oliver Letwin]

Before the hon. Gentleman moves on, I think what he says about the devolved authorities is incorrect. As I understand it, the Secretary of State made it perfectly clear that, if possible, he would like the devolved Administrations to come along with the process and share in the institutional framework. Of course, that is not a decision he can make; it is up to the devolved Administrations.

[Matthew Pennycook]

I am happy to take that on board. I learn more about Government environmental policy from the right hon. Gentleman than I do from his Front-Bench colleagues, so I happily stand corrected.

--- Later in debate ---

[Tommy Sheppard]

Indeed. While I am tempted to digress into a debate on what happened with the phase 1 agreement and regulatory alignment, I think I had better stick to the subject in hand.

With regard to defining “deficiencies” properly, amendment 264 calls on the Government to provide reassurance by bringing forward clear definitions of what they might mean by “deficiencies”. If we had that, we might be better able to consider whether to give them these powers.

[Sir Oliver Letwin]

I do not know whether it would be possible to find definitions that would help. However, the hon. Gentleman seems unwilling to accept, or certainly has not alluded to, the fact that secondary instruments, as opposed to primary legislation, are justiciable. Our courts are quite used to concepts like deficiency and appropriateness. Is that not what we are relying on—the action of the courts?

[Tommy Sheppard]

I accept that these things may be challenged, but I am trying to argue for a democratic process whereby it is the elected representatives of the people who debate and choose the policy direction in various areas.

[Tommy Sheppard]

Indeed. That takes me nicely to my next point, which concerns the word “appropriate”.

[Sir Oliver Letwin]

rose—

[Tommy Sheppard]

Can I make a little progress? I do not usually say that, but I am barely halfway through at the moment.

The word “appropriate” is one of those words that is so open-ended and ambiguous that it could literally mean all things to all people. That is why I am a big fan of amendment 2, in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve), which attempts to give some definition to what we mean by “appropriate”. I was not quite sure what he was implying about pressing it to a vote, but I hope that he is going to—I would be very happy to support it.

Amendments 205, 206, 216, 17 and 265 also attempt to define the word “appropriate”, with the effect of substituting the word “necessary”. That is a much more agreeable term, because “appropriate” is subjective: what is appropriate for one person may not be appropriate for the other, but what is necessary has to be evidenced by reasons. If something were to be appealed and come to court, it would be much easier to question necessity than appropriateness. These amendments would also be useful.

Let me now talk about the aspects relating to devolution—again, without getting into the phase 1 agreement. Clearly, the whole matter of how powers are exercised by Ministers, whether those powers are residual or broad-brush, has a critical impact on the devolved Administrations. I hope that the Committee will support amendment 161, which requires Ministers to get the consent of devolved Administrations when they are making secondary legislation on matters that affect them. I hope that that sort of qualification will be uncontroversial, but I dare say that it will not be.

Perhaps the most important amendment is 158 in the name of the hon. Member for Cardiff South and Penarth. It simply says that the Scotland Act 1998 and the Government of Wales Act 2006 should be exempt from the set of powers that we are giving to UK Ministers to bring forward secondary legislation. The Government already accept that the Northern Ireland Act 1998 has been exempted, so Ministers need to explain why they would exempt one devolved legislature and not the others. How can it be justified in one place and not in the others? Surely it is a simple matter of common sense to say that this provision should confer on UK Ministers an exercise of power in relation to the matters that this Parliament is responsible for, not in relation to those that other Parliaments are responsible for.

I want briefly to mention human rights. I appreciate that the Secretary of State has tabled an amendment, now to be part of what we are discussing, in which he refers to examining the equalities implications for any particular piece of legislation. However, we can do more than that. I want to know why the amendment says that we should exempt the Equality Act 2010 and the Equality Act 2006 from the powers being given to Ministers. If the Government do not accept that, there is always the danger of people implying from their actions that they may wish to do something that would constrain or overturn some of the safeties and securities in those Acts.

Let me talk about the experience that this place has in making secondary legislation. This will not be so important, I suppose, if we end up with a tiny number of residual matters that need to be considered in this way, but if that is not the case—if, because of a lack of legislative time, the Government try to put an awful lot of matters through secondary legislation—then we will be very ill-equipped to deal with that.

Like many Members, I have sat on Delegated Legislation Committees. They are effectively a rubber stamp; we hope that the officials and civil servants who draw up the regulations have worked them out, double-checked them and made sure of them, because we rarely get the opportunity to get into a debate. I well remember a recent Delegated Legislation Committee to which I turned up determined to get involved in a discussion of what the regulations were about, to the dismay of other Members. They were dismayed not by the content of what I said, but by the fact that I said it and made the meeting last 30 mins rather than three, so they missed their subsequent appointments.

That is how Delegated Legislation Committees work at the minute. People regard them as a rubber stamp and something of a joke. If we did not have faith in our civil service and those who prepare the regulations, we would be in a bad way indeed, and that cannot continue. I accept that the amendments tabled by the Procedure Committee are an attempt to overcome many of those deficiencies, but I think that they are baby steps. Of course they are worth taking, but they are minor changes to our procedures. If we try to load on to the existing procedures a vast array of secondary legislation, those procedures will not be fit for purpose and we will end up making bad and ridiculous legislation.

The debate has been about Henry VIII powers. I hope that those who argue for such powers do not go the way of the architect of the previous Henry VIII powers, Thomas Cromwell, and end up in the Tower or dead. I am sure that they will not, but I caution them, when they are considering how much power to give to Ministers—how much power to transfer from the legislature to the Executive—to take a minimalist rather than a maximalist perspective. If they do not, those of us who argue that this is a major power grab by the Executive from the legislature will be entirely justified in doing so.

I urge Ministers to tell us this in their summing up: if they reject every single amendment that is designed to constrain their area of operation—to define the manner in which they might exercise judgment on such matters—what on earth are they going to do instead to reassure this House? We need to know that we are not giving them carte blanche to go forward and do what they want without reference to the democratically elected representatives of the people in this country, for whom control was meant to have been taken back.

--- Later in debate ---

[Mr Baker]

I rise to speak to clause 7 and to amendment 391, tabled by my right hon. Friend the Secretary of State, which puts the Government’s commitment to transparency into the Bill by requiring that the explanatory memorandums relating to each statutory instrument must include a number of specific statements. I would like to put it on the record that the Government will support the amendments tabled by my hon. Friend the Member for Broxbourne (Mr Walker) on behalf of the Procedure Committee—I will be happy to move them formally if the Chair does not call them for separate decisions. I see from my speaking notes that I am due to speak to approximately 134 amendments, so I apologise in advance if I deal with any of them superficially.

The Government do not propose delegated powers lightly; we do so only when we are confident that secondary legislation is the most appropriate way to address an issue. This House is right to guard jealously its rights and privileges. It is for the purpose of taking back control to this Parliament that millions of people voted to leave the European Union. We want to limit any powers that we are seeking, in so far as we can, while ensuring that they can meet the imperative of delivering a working statute book on exit day.

The power in clause 7 is essential to achieve continuity and stability in the law. The day the UK leaves the EU is drawing ever nearer. If we simply stop at converting and preserving retained EU law, the day after exit the UK statute book will contain many thousands of inaccuracies, holes and provisions that are not appropriate. That would have real-world consequences, leaving errors in the laws that businesses and individuals, sometimes unknowingly, rely on every day. I am grateful that the general premise that we need to take these steps has been accepted by Members on both sides of the Committee and on the Labour Front Bench.

The power in clause 7 is intrinsically limited. As I and other Ministers, including the Secretary of State, have said from this Dispatch Box, it is not a power for Ministers to change law simply because they did not like it before we left the EU. Clause 7(1) is clear that Ministers may only do what is

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.”

If an issue does not arise from our withdrawal from the EU, Ministers may not amend the law using the powers in the clause.

Clause 7 is required to address failures to operate and deficiencies where the law does not operate effectively—for example, with reciprocal arrangements between the UK and the EU that have not formed part of any new agreement. Subsection (2) illustrates what these deficiencies might be. The clause is also subject to a number of direct limitations: it sunsets two years after exit day; and, as listed in subsection (6), it cannot impose or increase taxation, make retrospective provision, create certain types of criminal offence, implement the withdrawal agreement, amend the Human Rights Act 1998 or amend some sections of the Northern Ireland Act 1998.

[Sir Oliver Letwin]

Will the Minister clarify from the Dispatch Box that Opposition Members’ assertions that it would be possible under the provisions for the Government to introduce secondary instruments that changed the safeguards in the Bill are misplaced because no court would allow that to happen under the provisions of appropriateness and deficiencies?

[Mr Baker]

I am very grateful to my right hon. Friend. I will come on to the specific differences between clause 7 and clause 9 in relation to the power to amend the Act, but I will say now that the Act itself cannot be amended under clause 7. I will come on to develop that point later.

Clause 7(5) lists some possible uses of the power. These could range from fairly mechanistic changes to correct inaccurate references, to more substantial changes to transfer important functions and services from EU institutions to UK equivalents. Both types of change are important to keep the law functioning appropriately. At this stage, we do not know for certain what corrections might need to be made. The negotiations continue and there is a large volume of law to correct in a short space of time.

--- Later in debate ---

[John Penrose]

I absolutely accept that. Another important thing about the sifting committee will be that many of the other bits of Brexit-related legislation that are starting their journey through this House may contain large numbers of statutory instruments—potentially primary legislation-amending statutory instruments. What we agree for this particular Bill may well be an important template for how we treat those similar powers in subsequent pieces of legislation. We are doing important work here and it is crucial that we do it. I also urge my hon. Friend to broaden out the Procedure Committee’s approach to look more broadly at SI scrutiny powers after all this is done; many of us would encourage him to do that. However, such an approach is perhaps too wide for this Bill right now.

[Sir Oliver Letwin]

Before my hon. Friend moves on from sifting, does he agree that it represents substantial progress that we have heard from the Dispatch Box today that the recommendations made by the Procedure Committee will be respected by the Government in their conduct in the House?

[John Penrose]

Absolutely. Those commitments will be important and consequential, but we also need to ensure that everything gets baked properly into the Standing Orders and that the relevant votes are passed correctly.

Moving on to scope, I think still we have further to travel. A whole slew of amendments—not just the three or four tabled by my right hon. and learned Friend the Member for Beaconsfield that I have put my name to, but those of the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others—are trying to address the scope of the powers that Ministers will be given. In fact, Ministers themselves have accepted the principle, saying that they are sympathetic to the idea of trying to limit the scope of the powers. The Minister said that both he and the Secretary of State would like to do that if they could; it seemed to be a question of how, not whether it was desirable in principle.

When I tempted the Minister in an intervention, he also said that the view in the Department is that Ministers want to try to take just enough powers to successfully translate EU laws into British laws and no more. We all accept that there must be no less than the minimum required, but he was clear that Ministers only want to take the minimum. The question is not about the principle of necessity and sufficiency; it is about how that is translated into a legal wording that will allow the principle to be clearly expressed. I gently, but I hope forcefully, say to Ministers that the words in the Bill at the moment do not pass the sniff test for an awful lot of us in the Chamber.

I am extremely pleased, therefore, with the open, positive and constructive way in which Ministers have approached the issue and with the commitment from the Dispatch Box this afternoon to go back and have a further look. I could not tempt the Minister into a firm promise to introduce an amendment, but I think that that is going to be necessary by the time we get to Report if the Bill is to be amended in a way that becomes acceptable and passes the sniff test for most of us here.

The Minister was saying—I paraphrase him—that Ministers accept the principle that the minimum necessary, the necessity test, is the right one in principle, but they cannot find the right words because if they use the word “necessary”, and they have multiple necessities, the courts will interpret that in a way that is unhelpful and does not deliver what everyone wants. The problem Ministers have is that the word that they have chosen instead of “necessary” is too broad and brings in all sorts of other possibilities that give a great deal of concern around the House that Ministers will unintentionally but in practice introduce other powers that they have said this afternoon they do not desire, need or want to give themselves in principle.

[Sir Oliver Letwin]

Is my hon. Friend sure that the source of the problem lies in the term “appropriate”? The more I have listened to the debate this afternoon, the more it has seemed that the problem may come from the word “arising”. Perhaps we need words more like “entailed by”, which would limit the scope of appropriateness.

[John Penrose]

What my right hon. Friend has just demonstrated is the point that I was just about to come on to. We are going to need different words—in the plural—than we have at the moment and the discussions that have been promised from the Dispatch Box, even if an amendment has not yet been promised, will be essential to get the issue right. It is not right at the moment.

During the debate this afternoon, three or four options have already been proposed from the Back Benches, by my right hon. and learned Friend the Member for Beaconsfield, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) just now and by a couple of others. It is clear that there is no shortage of solutions; it will not be acceptable for Ministers to say, “This problem is too hard so we are going to stick with what we have.” There are enough brains in the room for us to get this right—there are certainly enough on the ministerial Benches and among advisers. So it ain’t going to be good enough for Ministers to say, “We understand the principle and have already accepted it in our remarks today, but it is all too hard and we can’t possibly manage it.” That will not fly.

I have discussed this response with my right hon. and learned Friend the Member for Beaconsfield. We are content, based on what we have heard, not to press the amendments on scope that we have tabled here this evening. However, it will be essential before we get to Report to see some creative alternatives that solve the problems that hon. Members on both sides of the House have alluded to. People on both sides of the House can propose lots of possible solutions. We need to find some that work and make sure that Ministers are content to introduce them in the impressively constructive tone with which they have already addressed the issue of the sifting committee. That needs to be done before Report.

--- Later in debate ---

[Nicky Morgan (Loughborough) (Con)]

I rise to speak to new clauses 53 and 77 and to amendments 385, 1, 2, 3, 5, 48 and 49. In view of all the speeches we have heard so far and the long speech from the Minister, I hope to deal with these matters quite briefly because many of the issues have already been discussed and, in some ways, addressed from the Dispatch Box.

Today, we are debating the rectifying of deficiencies that would result from bringing EU law into UK law. As my right hon. Friend the Member for Broxtowe (Anna Soubry) said, whatever we might think about the process of leaving the European Union, it is happening and we need to bring EU law into UK law if our withdrawal is to work successfully. I have always said that Brexit is good news for lawyers, and I say that with respect to my former profession.

New clause 53 was spoken to so impressively by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), and through it he seeks to address the potential loss of family reunion aspects of the Dublin III regulation and to propose alterations to the UK’s system by taking the key definition of “family” from the Dublin III convention and applying it to the UK’s refugee family reunion rules. Earlier this year, as my hon. Friend said, we went to Greece as guests of UNICEF to visit and talk to those who had travelled and were seeking refuge and looking to join family members in other parts of Europe. It was a moving and rather depressing but also ultimately inspirational visit that showed the power of the human spirit, particularly in younger people in search of a better life.

Parents and families often send their young people off to look for a better life here in Europe. Many of the young people we saw had made the dangerous journey to access family reunion under the Dublin III rules. As my hon. Friend the Member for East Worthing and Shoreham said, Dublin III allows children to join their extended family once they reach Europe. Under the regulation, the definition of extended family includes uncles, aunts, grandparents and older siblings. If, after Brexit, children fleeing war and persecution will be able to rely only on the UK’s immigration rules, they will have a right to be reunited only with their parents, as the existing UK immigration rules provide only for the right of parents with refugee status or humanitarian protection to sponsor their under 18-year-old dependent children to join them in the UK. The UK rules do not provide the same right to other family members.

We have to recognise that in many of these circumstances, it is because a young person’s parents have perhaps been killed or are unable to look after them that wider family members might offer protection and the chance of a new life. Ministers were clear, right from the White Paper onward to the way the Bill was presented on Second Reading, and in speeches on this subject, that no rights would be changed or policy changes made in the Bill. It is about making sure that EU law that is brought back to the UK works and that deficiencies are corrected if necessary.

[Sir Oliver Letwin]

Did my right hon. Friend share my puzzlement at the answer that the Minister gave to that point at the Dispatch Box? It seemed an argument was being made that Dublin III requires co-operation that would be impossible to guarantee. As I understood it, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and my right hon. Friend herself are both recommending a change in our immigration law to ensure that we parallel the situation that currently obtains under Dublin III.

[Nicky Morgan]

My right hon. Friend puts it extremely well. I was going to say that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), was one of the most ardent campaigners for the UK to leave the European Union, presumably—I think I have heard him and others say this—on the basis that the UK would then be able to do what was right for us and what we judged to be in the national interest and the right thing to do for our place in the world, so there was irony in his saying that we would not be able to do that because of restrictions and because it would not be allowed under the rules. That seemed to drive a coach and horses through what has been sold to me sometimes as the benefits of Brexit. I might remain unconcerned, but on this, I think that there might well be an opportunity for us to improve the current situation. I hope very much that the UK Government will take up such an opportunity.

If leaving the European Union gives us a chance to provide more clarity to our immigration rules, it has to be a good thing. From what the Minister said, I understand that there may be another piece of legislation, namely the forthcoming immigration Bill, that might be more suitable for tackling the issue. As my hon. Friend the Member for East Worthing and Shoreham said, we have spoken to the Minister for Immigration. I hope that we can take advantage of this opportunity to look again at the rules to clarify the fact that we want to mirror the Dublin III rules as we go forward. Ministers can be assured that, if this is not picked up when we get to that immigration Bill, my hon. Friend and I will be tabling a similar amendment in order to probe further and to hold the Government to account.

It is important that the United Kingdom remains committed to helping the most vulnerable both here and abroad. Surely that must be partly what a global Britain—by which I mean Britain taking its place on the world stage and making a difference—has to be about. This is the sort of amendment that says much about our values as a Government, as a party and also as a country. We do not want to make it even harder for young people to come to this country to build a new life and to make the most of themselves. I view this issue through the inspirational work of the Baca charity in my constituency.

Let me turn now to new clause 77 and amendment 385, which were spoken to so well by the hon. Member for Birmingham, Yardley (Jess Phillips). She knows a lot about these sorts of issues so I will keep my remarks very brief. Again the point is that the protections for those at risk of violence or worse must surely be maintained as we leave the European Union. I cannot honestly believe that any Member in this House would want Brexit to stop the current protections for those at such risk.

The hon. Lady’s amendment picks up on the European protection orders that allow a person who is protected against a perpetrator in a member state to retain that protection when they travel or move within the European Union. I heard what the Under-Secretary said at the Dispatch Box. I take the point that this is a detailed amendment and that, perhaps, it is better dealt with by the relevant Ministers from the relevant Department—the Home Office. I think that the Minister, who is back in the Chamber, did agree that this point would be, and should be, on the negotiation agenda. The desire for UK courts to continue to recognise European protection orders after exit date must surely be right, and I will support the hon. Lady in her amendment. There are a number of other Members—I cannot remember the exact number—who have signed this amendment to make sure that these issues are on the negotiation agenda. When talking about leaving the European Union, it is very easy to boil it all down to trade, to numbers and to statistics, but there are people whose lives will be affected, as we have also seen with EU citizens living here and UK citizens living abroad.

Finally, the Prime Minister has been committed throughout her political career to ending human trafficking, fighting female genital mutilation and having a strong strategy to fight violence against women and girls. She has been very clear on this, so I cannot believe that she would not want these protections to be upheld after the exit date.

Finally, let me turn to the Henry VIII powers and the amendments laid by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) who was particularly concerned about the concentration of powers in the hands of Ministers. I think she is right. I am a former lawyer, and one of the legal tendencies is continually to try to draft against what can go wrong when a client is about to embark on something—whether they have been advised to do it or not to do it. A lawyer’s task then is to try to find them protections. Although we can have confidence in current Ministers with regard to the powers that they might want to exercise, we never know what might happen in the future. If this Parliament does not ask why Ministers want all these powers and what they are going to do with them, the next generation of MPs, and the ones after that, will want to know why; they will want to know why we did not seek to apply some limitations on the exercise of those powers.

I am pleased that the Government have listened to the concerns about Henry VIII powers and are going to accept the amendments tabled by the Chair of the Procedure Committee, my hon. Friend the Member for Broxbourne (Mr Walker). He has secured an important concession—that Ministers will keep Members of Parliament informed of the forthcoming statutory instruments. I hope that Ministers will take that on board. Parliament must be involved in scrutinising powers that are exercised by the Executive. It is a fundamental tenet of this country’s unwritten constitution. I have set out two examples: the protection of the rights of vulnerable children and of those at risk of violence or worse. We should be asking how the statutory instruments needed to bring those laws back from Europe will be exercised and drafted, and we should be checking it all.

[Sir Oliver Letwin]

Does my right hon. Friend agree that the proposed changes to the standing orders are particularly welcome in that they provide specifically for the new committee, as I understand it—I am looking for approval from the Chair of the Procedure Committee —to use the Select Committees that deal with each Department to look in detail at the departmental statutory instruments, so we will have real expertise available?

[Nicky Morgan]

That is an excellent point and a very good idea. There has always been a wider call for the Treasury Committee, which I am privileged to chair, to look more broadly at finance legislation.

The Minister had a difficult job this afternoon. There were a lot of amendments for him to deal with, many of which were very detailed and some of which were clearly not within his departmental remit. This proves the point that we do need Members of Parliament who have an expertise in their background, sit on a Select Committee or have held a particular ministerial brief. This is the time for them to offer their expertise to the House and the country in order to ensure that we get the law that we are bringing back from the EU correct.

--- Later in debate ---

[Caroline Lucas]

I rise to speak to the provisions in my name, and particularly to new clause 27, which I hope to press to a vote later this evening. I apologise to Members for being absent from the debate for a couple of hours while I was in a Committee.

New clause 27 aims to preserve the high level of environmental protection that comes with membership of the EU. As we have discussed tonight, there is a very real risk that Brexit will create a big gap when it comes to the enforcement, in particular, of environmental law and standards in this country. The European Commission’s monitoring of member states’ action to implement and comply with EU law, backed up by the European Court of Justice’s ability to impose effective financial sanctions, have been an absolutely vital driver in pressing for and delivering environmental improvements in the UK. The example of clean air in London is just one case study that makes that point. In the absence of an effective domestic enforcement regime replicating the vital roles and functions currently performed by the Commission and the ECJ, it is difficult to see how the Government can deliver on their manifesto pledge to leave the environment in a better state than they found it.

On day 2 of the Committee, on 15 November, we had a good debate on the case for fully transposing the EU environmental principles into UK law. The debate was ultimately fruitless in terms of amending the Bill, but we heard a great deal from both sides of the Chamber about the importance of the EU environmental principles to the future protection of the environment in this country.

Perhaps most significantly, environmentalists such as myself were encouraged by a rather remarkable double act, with nods and comedic timing, of the right hon. Member for West Dorset (Sir Oliver Letwin) and the Secretary of State for Environment, Food and Rural Affairs. From that, we learned a little more about the Secretary of State’s plan, first announced on 12 November, to consult on a new independent statutory body to

“advise and challenge government and potentially other public bodies on environmental legislation…stepping in when needed to hold these bodies to account and enforce standards.”

More to the point, we were led to believe that the Secretary of State now intends to introduce an environmental protection Bill to establish an environmental protection body with prosecutorial powers and independence from Government that is charged with policing and enforcing a national policy statement incorporating the EU environmental principles.

That amounts to a welcome recognition on the part of the Secretary of State of the risk of an ever-widening governance gap on environmental protection after the UK leaves the EU if there is not a domestic enforcement regime. Taken at face value, it also seems to be an acknowledgment that the new environmental protection body must be absolutely independent of Government; must be prosecutorial and investigatory so that it can hold the Government and other public bodies to account, including through the courts if necessary; and must be robust and durable so that it cannot easily be abolished or have its functions eroded by stealth.

However, what we still do not know is whether this is a concrete plan that will soon be put into practice so as to ensure the protection of environmental standards in the UK from March 2019, or something that the Secretary of State alone ruminates about while in the bath.

[Sir Oliver Letwin]

rose—

[Caroline Lucas]

I am sorry—I love having discussions with the right hon. Gentleman, but I am aware that other people want to speak.

I will come straight to the point. My case is that the right hon. Gentleman wants me to have enough faith in the Secretary of State and in the capacity of this Government to get through a whole new piece of legislation in time. The crux of this debate is whether the rest of the House is prepared to go along with the confidence the right hon. Gentleman demonstrates, or whether we want to have a belt-and-braces approach.

The right hon. Gentleman said earlier that the idea of putting something in the Bill was inelegant. It may well be inelegant, but it is also a belt-and-braces way of making sure that, come the day we leave the EU—if indeed we do—we have all this legislation in an enforceable form on our statute book. If the Government are already saying, “Of course we’re going to do it—why worry?” why would they be so afraid of putting this into the Bill too? I appreciate that it is not elegant, but I would rather be inelegant and effective than elegant and ineffective.

That is why I want to press new clause 27 to a vote. It is a belt-and-braces way of ensuring with absolute certainty that when EU laws are brought into UK law they are properly enforceable and can be properly implemented. I had more to say, but to be fair to others, I will end now.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

The Secretary of State’s written statement aside, the Government must go further and put a vote on the final terms of the UK’s withdrawal on the face of the Bill, and they must ensure that that vote is truly meaningful. We have already debated what “meaningful” means—I fear that Members are sometimes talking past each other—and there is a variety of techniques that one might use to make a vote meaningful. Nevertheless, a meaningful vote must essentially be one on whether the House approves or disapproves of the final terms or, indeed, the lack of any withdrawal agreement, and it must happen before we leave the EU. The latter is something else that today’s written statement singularly fails to mention. It cannot be a “take it or leave it” vote and, as the right hon. Member for Broxtowe (Anna Soubry) said, it must allow a change of approach or of drift.

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

I just want to clarify whether the hon. Gentleman means what I think he means by what he just said. Does he mean that if the House did not approve a withdrawal agreement, his view is that the Government should have to ask for an indefinite extension of article 50 until the House has approved a set-up that it finds acceptable?

[Matthew Pennycook]

I do not think that is necessarily the case, for several reasons. First, there is no reason why a withdrawal agreement cannot be reached, perhaps even sooner than October 2018—

[Matthew Pennycook]

I think it will take a long time. The Minister can confirm this, but I assume the Government would be pleased to conclude the withdrawal agreement before October 2018, if possible. However, there are several things that might happen, one of which is that the Government go back to the negotiating table and try to improve on the deal. I cannot see what is unreasonable about filling in the gaps or asking for revisions, were that the expressed will of the House.

[Sir Oliver Letwin]

I am grateful to the hon. Gentleman for giving way yet again. I think that he has just confirmed not that it would necessarily follow that the Government would have to extend indefinitely, but that it would be possible that the Government, in his view, should have to extend indefinitely because this House had not agreed to the withdrawal agreement. In other words, he is saying, is he not, that, if this House does not approve the terms on which we leave, until and unless it approves the terms on which we leave, we should not leave. Is he saying that, or not?

[Matthew Pennycook]

What I am saying is that there is any number of options that might happen, but let us bear in mind there is a period after October 2018 for the Government to return to the negotiating table and seek to revise or improve the terms. It does not necessarily mean an extension of article 50—I know that the right hon. Gentleman is trying to draw me down that path.

--- Later in debate ---

[Mr Grieve]

Yes. If, indeed, we were leaving with nothing further to do, that might be a good point. But it seems to be a pretty universal view, even on the Government Benches—although this perhaps does not apply to my hon. Friend—that simply leaving to jump off the top of the tower block is not the best thing to do. Therefore, there will need to be primary legislation to implement the undoubted new constitutional order that we will have after 29 March 2019.

[Sir Oliver Letwin]

Will my right hon. and learned Friend give way?

[Alex Chalk (Cheltenham) (Con)]

Will my right hon. and learned Friend give way?

[Mr Grieve]

May I just make a tiny bit more progress?

As the Government’s position has shifted, they have come up with a written ministerial statement, which seems accurately to reflect the right direction of travel. But the difficulty is that clause 9 is entirely incompatible with what the Government have set out.

[Sir Oliver Letwin]

I happen to agree with my right hon. and learned Friend that it would be undesirable for us to leave without an agreement. Indeed, I think that the Government agree with that. But I will go back to the point made by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) a moment ago. Does my right hon. and learned Friend agree that, in the event that it were not possible to reach a further agreement, it would then be the case that the actions of Parliament already taken—including in triggering article 50—would constitute a proper answer to the Supreme Court’s point that Parliament, and Parliament alone, can remove us from the EU?

[Mr Grieve]

Yes, I think I agree with my right hon. Friend that the action of Parliament in triggering article 50 would do that. But it is not, I think, the intention of the Government to do any such thing, and never has been. Indeed, if it is the intention of the Government to do such a thing, I hope very much that they will tell me as soon as possible, because I think I might be withdrawing my support from them.

--- Later in debate ---

[Hilary Benn]

I am still wrestling with the concept of a red, white and blue Brexit, and I did not find it very enlightening.

The second answer was, “No running commentary,” but that eventually had to give way to the Lancaster House speech and a White Paper. Then we asked, “Will Parliament get a vote?” Almost exactly a year ago, when the Prime Minister last appeared before the Liaison Committee, I asked her that question. She was unwilling to give me a commitment on that occasion, but we all pressed, and in the end the Government conceded that there would be a vote.

We argued that there would need to be separate primary legislation to implement the withdrawal agreement, but what did the Government do? They produced this Bill, which says, “No, no. We’ll just do it all by statutory instrument.” That was until amendment 7 appeared on the horizon, at which point the Government changed their mind. If the Committee insists, as I hope it will, on amendment 7 later today, that will be because of our experience of the Government’s handling of the Bill so far. They have not acted in the spirit of seeking consensus, even though the Prime Minister said earlier that that was what she wanted to achieve.

The final point I want to make is simply this. Parliament has no intention of being a bystander in this process. We intend to be a participant, as I have said on a number of occasions, because this decision affects every part of the country, every business and every family. Today’s debate and vote are all about control, which must ultimately rest not in Ministers’ hands but in our hands. It is up to us to make sure that that happens.

[Sir Oliver Letwin]

Until now, with the exception of some interventions, I believe that all contributions have been, in one way or another, in support of amendment 7 and its correlative amendments. I hope, Sir David, that you will allow me a little leeway with timing to address my points, because I do believe that the debate has so far been one-sided.

I want to start by talking about the speech made by the right hon. Member for Leeds Central (Hilary Benn), who was characteristically good-humoured and articulate, and the fine speech from the Opposition Front-Bench spokesman, the hon. Member for Greenwich and Woolwich (Matthew Pennycook). I will then turn to amendment 7 and the speech made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They all brought the cat out of the bag very well. As I will explain in a moment, I distinguish between what the Opposition are after and what my right hon. and learned Friend is after.

The right hon. Member for Leeds Central and the Opposition spokesman in effect said this. The House of Commons voted by a vast majority for a referendum, the people by a narrow majority voted to leave and the House of Commons voted by a vast majority to trigger article 50, which says:

“The Treaties shall cease to apply…from the date of…the withdrawal agreement or, failing that, two years after the notification”.

That has been accurately described by some on the EU side of the negotiations as an inevitable process to leaving, but the Opposition say that the House should be capable of telling the Government that they must seek to reverse the process by seeking—not necessarily by obtaining, because we cannot guarantee that they would obtain—

[Hilary Benn]

That was not what I said.

[Sir Oliver Letwin]

Yes, that is what the right hon. Gentleman said. The logic of what he was saying carries us remorselessly there, and I will come on to explain why.

[Hilary Benn]

indicated dissent.

[Sir Oliver Letwin]

The right hon. Gentleman cannot continue to shake his head with conviction. His logic carries him there because he defines a meaningful vote as one that gives the House the capacity to reject either a deal it does not like, or the possibility of exiting with no deal. This is not a matter of opinion or value; it is a matter of logical fact. The only alternative to accepting a deal that we do not like or refusing to accept no deal is to leave the whole matter aside and not exit the Union. We either exit without a deal or we exit with a deal. If the deal is rejected but the Government are told that we cannot leave without a deal, we cannot leave.

[Hilary Benn]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I will, of course, give way to the right hon. Gentleman in a moment. I just wanted to expose the logic very clearly, because there are no other logical possibilities. I challenge him to explain what the other possibility is.

[Hilary Benn]

I set out—very clearly I thought—in my speech what the other possibility is. For the avoidance of any doubt on the right hon. Gentleman’s part, I have said repeatedly in this House that we are leaving the European Union at the end of March 2019—and, indeed, I voted for the article 50 legislation. I was discussing today the terms on which we will leave. It is perfectly possible for Parliament to look at the terms and say, “We do not like them; we would like different ones,” and to give the Government different instructions, provided that there is time. That was my point.

[Sir Oliver Letwin]

Of course it is possible for the House of Commons to tell the Government that it does not like the terms, and of course it is possible for the Government to go back and ask for the terms to be changed, but it is also possible—

[Vicky Ford (Chelmsford) (Con)]

Will my right hon. Friend give way?

[Sir Oliver Letwin]

Please, allow me to continue. It is also perfectly possible, as the right hon. Member for Leeds Central knows, because he is a fine logician, for the other side in the EU negotiations to reject such alternative terms. We therefore hit the question that he cannot evade: under those circumstances, is he or is he not hoping—the Opposition spokesman made what he was hoping for perfectly clear—that Parliament will have the right to tell the Government that they cannot leave on terms that Parliament does not accept? I really think that that is important, if we are to be honest about this, because that is what the right hon. Gentleman and the Opposition spokesman are suggesting.

[Yvette Cooper]

rose—

[Sir Oliver Letwin]

I have no doubt that it is also what the right hon. Lady who is now seeking to catch my eye wishes to suggest. I will let her do so, and then I shall give way to my hon. Friend the Member for Chelmsford (Vicky Ford).

[Yvette Cooper]

The logic of the right hon. Gentleman’s position is that he wants to rule out any possibility for Parliament even to ask the Government to go back to the negotiating table. Of course he is right that, in the end, this is about a negotiation, and the 27 other European countries will have a view and such a negotiation will take place. The logic of his position, however, is that he wants to rule out any say for Parliament at all, or any attempt by Parliament to ask the Government to try to get a different or better deal, or to change the terms, and that makes absolutely no sense at all for anybody who believes in the role of Parliament.

[Sir Oliver Letwin]

First, the right hon. Lady has said nothing to contradict my point about what she and other Labour Members are arguing, and secondly, as a matter of fact, that is not a correct characterisation of my position. I am perfectly happy that Parliament should ask the Government, if there is time, to go back and reconsider the terms they are negotiating. I have no problem with that at all. The question is what happens if they cannot succeed in negotiating those terms and, in the end, we reach that crunch point.

[Several hon. Members rose—]

--- Later in debate ---

[Sir Oliver Letwin]

I am not going to give way to anyone except my hon. Friend the Member for Chelmsford.

[Vicky Ford]

May I take my right hon. Friend back to what he said about article 50? It is true that that says:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless”—

I repeat, unless—

“the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

That is exactly the point. If we are close to a deal but, for example, struggling to get the last vote through the European Parliament, the 28 countries may wish to take a little more time.

[Sir Oliver Letwin]

My hon. Friend makes my point for me. The very point I am making is that no UK Government and no UK Parliament can guarantee that the other side would agree to any such thing.

[Angus Brendan MacNeil]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I will not give way.

[Matthew Pennycook]

rose—

[Sir Oliver Letwin]

I will give way to the Opposition spokesman in a moment.

There therefore can arise circumstances in which the choice, in the end, is between accepting leaving with no deal and not accepting leaving. I continue to believe—it is important that there is honesty on this point—that Opposition Members are essentially arguing that this House should have the ability to derail the process.

[Matthew Pennycook]

I do not think that that is a fair characterisation of my argument. The right hon. Gentleman has said that there is a possibility, in certain circumstances, of sending the Government back to ask for the deal to be changed. It is possible that that might be turned down, so it is not certain, but it is possible. Does he think that that should be an option, and if so, if he votes against amendment 7, what other mechanism might we use to send the Government back to at least try to improve a deal that this House felt was sub-optimal?

[Sir Oliver Letwin]

I am very happy to answer that question, and it will bring me neatly on to the point I want to make about the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. The answer, of course, lies in the combination of the proceedings on the resolution that will have to be agreed by this House, during which it will be perfectly possible for this House, both in debate and in the way it votes, to tell the Government, if there is time, to go back and try again; and of the proceedings on the withdrawal and implementation Bill, during which again, if there is time, the House could reject the proposition and ask the Government to go back.

We then come to the nub of what happens if there is no time anymore because the Government cannot get a renegotiation and cannot get an agreement—a further prolongation—of the kind that my hon. Friend the Member for Chelmsford describes. The question arises of whether Opposition Front Benchers are recommending, in those circumstances, that leaving without a deal is the possibility it needs to be for article 50 and the referendum to be respected. That is a crunch question that the hon. Member for Greenwich and Woolwich cannot avoid.

[Matthew Pennycook]

I will be brief, and then leave it there, but I want to pick up on two of the right hon. Gentleman’s points. First, I think there will be time. Last week’s joint agreement makes it clear that there must be time, in accordance with our own procedures, to look at the withdrawal agreement and then ratify it.

The right hon. Gentleman said that there is a possibility, on the basis of the Government’s commitment to a motion, to send them back to renegotiate, but that is not what his Secretary of State says. The Secretary of State says of the motion it is an up/down deal, and that a no vote would be the end of it—leaving without an agreement; not going back to the negotiating table.

[Sir Oliver Letwin]

There is no possibility of precluding Parliament from making such a resolution one way or the other. That is up to Parliament, and it is up to the Government of the day at that point to respond as they choose. No Government would sensibly respond in the way the hon. Gentleman describes, so I do not think that that is a realistic possibility.

[Mr Djanogly]

rose—

[Mr Baron]

rose—

[Sir Oliver Letwin]

I will give way to each of my hon. Friends, but let me say that I will not then give way again before I turn to the main part of my speech, which is about amendment 7.

[Mr Djanogly]

My right hon. Friend will be aware that all parties are aiming for next October for the negotiation of the final deal, but the Secretary of State has said that he will keep negotiating until March 2019 and that, if necessary, he will go on after that into the implementation period, so there should be time one way or another.

[Sir Oliver Letwin]

I agree with my hon. Friend. There may well be time; I am not in any way denying that. The point I was trying to make is that Labour Members have alleged that it is proper for Parliament to be able to have what they have described as a meaningful vote. They have made it perfectly clear that what they mean by a meaningful vote includes the ability to tell the Government that they cannot continue to leave the European Union if the terms on which they wish to leave are not acceptable to Parliament. That is a logical fact, and people can agree with it or disagree with it. I do not in any way impugn the motives of Labour Members; it is a perfectly reasonable thing for them to think. It is just that we ought to be honest about the fact that that is the proposition they are putting forward, which is in marked contrast to the point made by my right hon. and learned Friend the Member for Beaconsfield in his amendment 7.

[Mr Baron]

May I suggest that amendment 7, as presently drafted—this is central to my right hon. Friend’s point—has a major deficiency, because it could leave things in a permanent state of limbo? There is no incentive on the EU’s side to help to negotiate a good deal that is acceptable to this Parliament, which means that we could be left in deadlock for a period of years. I raised that point with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), but he did not cover it in his speech.

[Sir Oliver Letwin]

I am grateful to my hon. Friend for that point, which I will come back to in a moment.

In turning to amendment 7, let me start by saying something on a personal level. I have been in the House for exactly the same length of time as my right hon. and learned Friend the Member for Beaconsfield—I think we entered it on the same day, as it happens—and I have served with him in a number of capacities both in opposition and in government, and I have the highest personal regard for him. I have invariably found that when he says something he means it, and I have never found him to be one of those who plays games. Moreover, although I profoundly disagree with him about his amendment, for reasons that I will put forward, I think his motives in producing it are totally honourable and straightforward, and deserve the respect of everyone in the House of whatever persuasion they may be.

There is a reason, however, why I think the amendment is a very bad one. I want to expose an extremely important point about it, which began to come out in the remarks of my right hon. and learned Friend and others. It would not have the effect that the right hon. Member for Leeds Central or the Opposition spokesman seek: it would not actually make it impossible to continue the article 50 process and leave without an agreement. There may be some Members on either side of the House who are tempted to vote for amendment 7 on the basis that it would have such an effect, but it plainly would not.

What amendment 7 would prevent is the issuing of orders under this Bill until another Bill that the Government intend to bring forward has been enacted. If it was agreed and we had not been able to pass the withdrawal and implementation Bill, it might in certain circumstances create the inconvenience of our not being able to issue orders to implement a withdrawal agreement to which the Government had signed up. However, not being able to implement the provisions of an agreement in domestic law does not prevent us from signing and ratifying the agreement and does not prevent us from leaving the European Union. Anybody on either side of the House who imagines that amendment 7 would have the effect of creating what the right hon. Member for Leeds Central called a meaningful vote is under a severe logical illusion. It would do no such thing. The Opposition have tabled, I think, a new clause that would have the effect of giving that power to Parliament, but amendment 7 would not do it.

[Mr Kenneth Clarke]

My right hon. Friend perfectly clearly sets out that a serious constitutional impasse is possible if this House does not pass an agreement, because article 50, even if it is delayed a bit, will eventually lead to our leaving. That assumes—he does not do so, but some of the more hard-line Eurosceptics do—that there are people in the EU who want no deal. I have never met any such person, because actually they would suffer from having no agreements on flights, security, policing and all the rest of it. As has been said, we are inevitably dealing with hypotheses and nobody, whatever their views, really has the first idea where we will be in 18 months’ time, but his suggestion is a most unlikely consequence. If this House rejected a deal, the British Government would go back and say, “We’ve got to have a better one.” I personally would guess that the other 27 nation states would reconsider and see whether they did not have to give a better one in order to the get the deal that they had already tried to sign up to.

[Sir Oliver Letwin]

I think that is a very possible eventuality, which takes us back to our earlier discussion. I certainly agree that if, upon a resolution, the House refused to accept the withdrawal agreement suggested by the Government and agreed by the EU, it is very likely that the Government would go back and try to renegotiate it, and it is very possible that they would succeed in doing so. I do not deny any of that. My point is that amendment 7 would not force that result, because all it would do is, under certain circumstances, stop certain kinds of orders being issued under this Bill.

[Mr Grieve]

I picked this amendment with some care, precisely because I wanted to avoid the suggestion that by tabling it I was trying to sabotage Brexit. I was trying to prevent the potentially abusive use of a power in clause 9 when the Government were saying that they were going to do something different. That was the purpose behind the amendment. It was also, if I might say so, to prod the Government into responding, which I very much regret they have failed to do.

[Sir Oliver Letwin]

I am delighted by my right hon. and learned Friend’s intervention, because I agree that he has succeeded in doing that. He has not created the so-called meaningful vote that the right hon. Member for Leeds Central and the Opposition want. He has instead pointed out an issue with the use of the order-making power in this Bill. The question is: is it a good amendment in those terms? We have accepted that it is not a question of creating or not creating a meaningful vote, to use the term used by the right hon. Member for Leeds Central, but just a question of trying to get the Bill into good order—a pursuit in which my right hon. and learned Friend the Member for Beaconsfield and I have joined on many occasions during Committee proceedings. However, I think that on this particular occasion, this particular amendment is not a particularly good way of doing that. I will explain why I think that is the case, and I hope that the Government will instead come forward with another way of achieving the same effect.

It is a very odd situation indeed to have an amendment to what will become a section of an Act that refers to another piece of primary legislation as the basis for an order-making power in the first piece of legislation. In fact I think it is virtually unprecedented.

[Mr Grieve]

The Bill is unprecedented, because it is asking us, in the light of what the Government themselves say they are going to do, to sanction a power that undermines a further statute that the Government intend to pass, which should be the source of power for removing us from the EU.

[Sir Oliver Letwin]

Now I am beginning rather to agree with my right hon. and learned Friend. Therefore, my suggestion is that if that is the purpose of his amendment, it would be far better that it come back as a Government amendment on Report that achieves that effect in a different way and directly, without the gross inelegance of referring to another piece of legislation. It should mainly limit the power in clause 9 to things that are urgent and immediate, and perhaps even specify what sorts of things they might be.

As a matter of fact, I rather share my right hon. and learned Friend’s inclination to believe that clause 9 in its present form came forward before the Government were clear about the need for the implementation and withdrawal Bill, and that Ministers and officials have so far been quite hard pressed to identify exactly which powers are required in clause 9 under the new dispensation of that forthcoming Bill. The Government therefore have a good opportunity to promise from the Dispatch Box today that they will come back on Report with an amendment that is correctly phrased in such a way as to limit the order-making power in clause 9. That would avoid the possibility—this is the point that I want to make to my right hon. and learned Friend and other hon. Friends—of suggesting that we are in any way creating a launch pad for the efforts of the right hon. Member for Leeds Central and Opposition Front Benchers to create what they call a meaningful vote, which is in fact an ability to trigger us not leaving.

[Mr Grieve]

There will undoubtedly be an opportunity at the end of this process, if this House were so minded, to reject a deal. I have to say—my right hon. Friend may agree with me—that ultimately the House could bring this Government down, if it had to or wanted to do so. That is our constitutional ability.

My right hon. Friend’s main point does not find favour with me, because the only way we will get something sensible on Report is by getting amendment 7 on the statute book and on the face of the Bill. I asked repeatedly for an engagement along precisely the lines that my right hon. Friend has identified, and it was consistently rejected. That is why I will vote for amendment 7, and if I may say so, I would encourage him to do likewise.

[Sir Oliver Letwin]

I am surprised by that, because my right hon. and learned Friend has a long and distinguished record of voting for good law. I do not think that this is good law, for the reasons I have identified. I think it really would be better if we had a correct amendment at a later stage of proceedings.

[Sir Oliver Heald]

Does my right hon. Friend agree that the current plans create the risk of parallel legislation, with an Act of Parliament dealing with our withdrawal agreement going through at the same time as all sorts of orders, because there is no trigger mechanism for, or constraint on, the order-making power? Therefore, is not my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, doing the House a service by seeking to avoid the risk of parallel proceedings, which is something that this House never does?

--- Later in debate ---

[Sir Oliver Letwin]

I agree with my right hon. and learned Friend that we ought to avoid the possibility of parallel proceedings, but my suggestion would certainly achieve that. If the Government were to come forward at a later stage with an amendment that made it clear that clause 9 could be used only for urgent things of a specified kind, that would prevent the possibility of parallel proceedings.

[Anna Soubry]

May I suggest another way forward, which is that we agree to the amendment and then, given that this is Committee stage, the Government can go away and fine-tune it, which is what they thought it needed? They had the opportunity to the table their own amendment, but they did not see that commitment through and table one by 3 o’clock on Friday. There is another way. Let us vote on and accept the amendment today and put a meaningful vote in the Bill; and if it needs a twiddle and a tweak, we can come back on Report and I am sure we will all agree to that.

[Sir Oliver Letwin]

But if my right hon. Friend agrees with me that our purpose in this case is not to create a so-called meaningful vote but simply to ensure that clause 9 is not used to create parallel proceedings or to give carte blanche, it would clearly make sense for the Government to make that undertaking rather than to accept an amendment that has an unnecessary effect.

[Charlie Elphicke (Dover) (Ind)]

Looking at this matter independently, as one does these days, it strikes me that my right hon. Friend’s argument raises a serious question about why clause 9 needs to be in the Bill at all. We are going to have a withdrawal agreement and implementation Bill, and if the Government cannot say what it is that might be urgent, why should we have this clause at all?

[Sir Oliver Letwin]

Now that there is to be an implementation and withdrawal agreement Bill I do not personally yet understand the need for clause 9. However, the right way to deal with that is for the Government either to say that they will consider getting rid of clause 9 or to make the kind of restricted amendments on Report that I was describing. In any of those ways, the problem would be resolved without the need for this kind of tension, and that would surely be desirable.

[Mr Grieve]

I am most grateful to my right hon. Friend for giving way again. In a sense, he unmasks my strategy. I have spent the whole time trying to be sotto voce about this, trying to get some common sense into the Government, which I have been unable to do. It is for that reason that, I very much regret, there really is no alternative to amendment 7. It may be inelegant—although I do not think it is—but it does the business. It would stop the Government doing something that they should not be doing. I could not agree with him more that clause 9 could be removed entirely. It would very sensible if the Government were to do that, but if I had suggested that they would have been upset with me, and it would have made the relationship and the negotiation even harder. In the spirit of conciliation I avoided that brutality and came up with something different.

[Sir Oliver Letwin]

Speaking personally, I do not think there would be anything very brutal about the Government deciding on Report that it would be sensible to not have clause 9 in the Bill, given that there will now be a separate piece of legislation to achieve the same effect.

[Chris Bryant]

I hope that means the right hon. Gentleman is now calling on the Government not to move that clause 9 stand part of the Bill, and that, if they do not do that and instead insist that clause 9 does stand part of the Bill, he will vote against it. That is the obvious logic of what he is saying.

[Sir Oliver Letwin]

It was with some regret that I gave way to the hon. Gentleman. I have never known him to take a position that was not partisan and slightly ludicrous, and that was a classic example. Here am I irenically trying to achieve a result that would be in the interests of the nation—good legislation that has the effect my right hon. and learned Friend the Member for Beaconsfield agrees he is trying to achieve, but which would not have the disadvantage of enabling the Opposition Front Benchers, the right hon. Member for Leeds Central and others, including the hon. Member for Rhondda (Chris Bryant), to achieve the meaningful vote they want to achieve. But what does he want to do? He wants to create some trouble. Well, that is fine—that is what happens in Parliament. My suggestion, however, is not that the Government should be defeated tonight or engage in some huge reversal, but that they should make the sort of change they often make in Committee and on Report—there is, after all, much time to consider the issue on Report if necessary. I want them either to make an adjustment to clause 9 or remove it. That would overcome the difficulty without creating a platform for ending our withdrawal, which is I think the subterranean motive of many on the Opposition Benches—although not, I stress, of my right hon. and learned Friend the Member for Beaconsfield.

[Heidi Allen (South Cambridgeshire) (Con)]

Will my right hon. Friend give way?

[Angus Brendan MacNeil]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I will give way two last times and then I really must sit down, because I have said everything I wanted to say and I am now just responding.

[Heidi Allen]

I am afraid I am little overwhelmed by the legal expertise all around me—I will just speak very plainly. Does my right hon. Friend not understand the difficulty and the trust issue when my right hon. and learned Friend the Member for Beaconsfield has been trying for weeks and weeks, with all good intentions, to engage the Government in this process and has failed? There comes a point when enough is enough and the voice of Parliament has a role in saying, “Put this in the Bill.”

[Sir Oliver Letwin]

I understand what my hon. Friend is saying, but I do not agree with her. There is a well established process for Bills in this House that includes a Report stage. If one wishes to table an amendment in the House of Commons that the Government will not accept, it is perfectly possible to do so on Report. There is no reason to force the issue in Committee. As a matter of fact, the Bill will proceed through the other place, where there will be many, many proceedings. I do not have the slightest doubt—I am sure all my hon. Friends would agree—that it will send messages back to this place, so that will give us another opportunity. I do not stress that, though; it is enough that we have the Report stage. I quite agree that there is a mischief here, but I think it is a restricted mischief and I do not think the amendment is needed to deal with it. There are other means of dealing with it. It could be done on Report, and I therefore do not think that “enough is enough” applies now.

[Angus Brendan MacNeil]

The right hon. Gentleman has been digging a hole for himself on clause 9 quite successfully. The way he has been speaking, he seems not to understand that the amendment would only giving the House the possibility of a vote. Given the way the Brexiteers have been winning every vote, if a vote was held on a deal the only reason it would be lost is if it was a terrible deal for the UK. His argument is the equivalent of somebody setting sail on the Titanic and refusing to take any lifeboats.

[Sir Oliver Letwin]

It is very odd—it is as if the hon. Gentleman has not been here, but I have seen his body here all the time. The fact of the matter is that the House has had a series of votes, it is going to have a further series of votes, and then it is going to have a whole pile of votes on, inter alia, the new implementation and withdrawal Bill. In fact, my right hon. and learned Friend the Member for Beaconsfield is totally in agreement with that. There is no question of whether we give the House a vote. It is going to have a vote. The question is: what is the articulation of that with clause 9? That is what those of us who are being serious about this have been trying to discuss.

I really feel that I have come to the end of my remarks. I apologise, Sir David, that I am long past time. I hope you will accept that it is because I was answering points from other Members.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

We have been discussing new clause 3 and amendment 7, which is about process in this place and, as has been said, whether there is any point in clause 9 if there is going to be a withdrawal agreement Bill. The problem is that, if clause 9 remains in the Bill, the Government will still have powers in the interim to make changes, including to the Bill itself. That means that, when the Bill completes, the Executive could simply change it in any way they wanted.

On the issue of having a vote that is meaningful, if the only option we have is the deal that comes back or no deal, frankly, that is Hobson’s choice. What should have been happening is what the Prime Minister categorically refused: a running commentary. Other Governments in Europe have sent people back to the negotiating table to try to make changes when legislation has been enacted. It is important that we remember the paucity of the debate running up to June 2016. We did not explore all the impacts. There was one debate in this Chamber on the EU and the economy. There was no debate in this Chamber on the health or social impacts, or on the loss of rights and opportunities. We did not have that. We did not air these issues—it is like having the Brexit debate now.

I want to speak to amendment 143, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), which looks for a signed agreement to protect EU citizens in the UK and UK citizens in the EU.

--- Later in debate ---

[Dominic Raab]

We have only two hours left, and I want to make some progress, but I give way to my right hon. Friend the Member for West Dorset.

[Sir Oliver Letwin]

I think that my hon. Friend is suggesting a route to solving the problem raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). Could not the requirement that the resolution be sanctioned by the House before the implementation of those orders be put into a revised version of clause 9 on Report?

[Dominic Raab]

I would hope that the assurances we have made, along with the written ministerial statement, are adequate, but there is nothing stopping any hon. Member coming back and having another go. We have—[Interruption.] The hon. Member for Rhondda is sitting there tapping knowingly. He has been talking about the separation of powers between the legislature and the Executive, and now I am being asked to correct homework for hon. Members. That is not necessarily the course on which to proceed. What I will do, as we have done all along and as I think as my right hon. and learned Friend the Member for Beaconsfield knows, is to continue to discuss all these matters with my right hon. and hon. Friends as we progress. The important point to understand—we have not had a huge amount of time to go into the details of what the compromise assurances might be—is that at the moment amendment 7 is defective and would have very real consequences for our ability to deliver on the deal we do with our European partners.

--- Later in debate ---

I have my doubts about clause 9 anyway, because I think it goes further than is strictly necessary for the purposes of the Bill. Having a clause in a Bill that allows the Bill itself to be amended is going a little bit too far. That was why I was reassured by what the Minister said at the Dispatch Box about bringing forward a motion before any statutory instruments are brought into effect under the powers in clause 9. That is a generous concession by the Government.

[Sir Oliver Letwin]

Does my hon. Friend agree that there is a quite natural solution, which is to put the assurance given at the Dispatch Box into the clause when the Bill comes back on Report?

[Mr Rees-Mogg]

My right hon. Friend’s speech was absolutely brilliant. He got to the heart of all these matters, and indeed he provided a solution, which is that there should be such a good-spirited compromise that places some faith in the Government, as it is reasonable for Members of Parliament to do. We should recognise that it is better to have a clear response on Report that covers the whole problem than to agree an amendment that is constitutionally abnormal, because we should not agree to such amendments.

I follow the Minister’s argument that there are circumstances in which clause 9 could be useful. If an agreement comes relatively late on, I understand that there will be an urgency in getting statutory instruments presented. There also will be a Prorogation before May 2019, so there might be a delay in the proceedings on the withdrawal and implementation Bill and therefore a need for urgent action. If we pass a motion, as may be legislatively required, to accept the proposed statutory instruments, that will both maintain parliamentary control and give the Government the flexibility that they are likely to need.

This issue becomes very significant because, as we leave, we will want legislative continuity and clarity. The date has been set, and that has been debated, but the key is that the date has been set by previous decisions of Parliament. It is in no sense an erosion of parliamentary sovereignty, because the date is set out in the Act triggering article 50 and in the Act incorporating the Lisbon treaty into UK law. The timeframe was set under voluntary Acts of Parliament requiring things to be done by 29 March 2019. It therefore follows that there is some pressure on time, so it is perfectly reasonable for the Government to ask for such flexibility.

I conclude on the vote at the end—the final meaningful vote. The hon. Member for Rhondda (Chris Bryant), as he so often does, made an elegant point when he said that this is a metaphysical decision for us about the meaning of meaning. The issue is that Her Majesty’s Government have already promised that we will have a vote on the deal before the European Parliament does, but there is no deal until the European Parliament has voted. The European Parliament has to agree to the deal—as part of the article 50 package, this is decided by an enhanced qualified majority vote, subject to the approval of the European Parliament—but we have already been promised a vote before the matter is voted on by the European Parliament.

--- Later in debate ---

[Stephen Kinnock]

I agree absolutely with the right hon. Lady. I pay tribute to her and to a range of other right hon. and hon. Members across the House. This is not an easy choice to make. It is always difficult in these circumstances when there is a huge amount of interest and focus on what we are about to do in this House. It is essential that hon. Members stick with their principles, and sometimes that means putting country before party. I pay tribute to every right hon. and hon. Member who will do that this evening. This is indeed a matter of trust. The challenge that we face is that if this provision is not put on the face of the Bill, we will not have the confidence and the assurance that we in this place can indeed take back control and reassert the sovereignty of this place, which is what 17 million people voted for on 23 June 2016.

[Sir Oliver Letwin]

rose—

[Stephen Kinnock]

I am afraid I must push on, because we are moving towards the deadline.

Having paid tribute to those right hon. and hon. Members for what they are doing this evening, I commend the terms of amendment 7 to the Committee. I will be honoured to go through the Division Lobby with those right hon. and hon. Members this evening.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

[Mr Leslie]

I want to conclude my remarks because others want to speak. I simply want to make a final point about why the customs union is such a crucial issue, and why I urge my hon. Friends on the Front Bench and hon. Members across the House to think about the consequences of not staying in the customs union.

If this country ends up with hard borders again, there will be big consequences. Our ports could grind to a halt. Lorries will clog up our motorways, with, potentially, vast lorry parks near the ports. The expensive, wasteful spending on bureaucratic checks will hurt our industries, and we ought to be evaluating the economic impact of industries, potentially, gradually relocating elsewhere because it is easier to do business in a different jurisdiction. Think of the jobs lost, particularly in the manufacturing sector, if we get this wrong. Bear in mind that we will not have any say on what happens on the EU side of the border after this whole process. There is no guarantee about what happens at the other end of the channel tunnel or in Calais.

The reason I have pushed new clause 13 as I have, is to do with the austerity that we risk in this country for the next decade—a decade of Brexit austerity that will potentially befall many of our constituents because of the lost revenues. Unless we stay in the single market and the customs union, we will have that austerity on our conscience, and I urge hon. Members, especially all my hon. Friends, to think very seriously. We have to make sure we stay in the customs union.

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

It was a pleasure to listen to the speech of the hon. Member for Nottingham East (Mr Leslie). It is like a vintage wine—it improves with age as one hears it on repeated occasions, with mild variations.

[Helen Goodman (Bishop Auckland) (Lab)]

A bit like yours.

[Sir Oliver Letwin]

Well actually, oddly enough, I intend, as previously in Committee, to attend to one of the amendments—in fact, two—rather than to the general question of whether it is a good idea to leave the EU. I want in particular to speak about amendment 400—a Government amendment now—and amendment 381, the original Government amendment to which it relates, in a sort of package.

There has been a certain amount of confusion in discussion of the amendments in public—although not, I hope, in the House—so I first want to make it quite clear what they do and can do and what they do not and cannot. The issue has often been reported as if it relates to the question of when we withdraw from the EU, which is very interesting but nothing to do with the amendments. Neither is it anything to do with the Bill, because withdrawal from the EU, as all hon. Members present know, is governed by the article 50 process, not by an Act of Parliament. If we could wave a wand and decide how we do these things through an Act of Parliament, how much easier that would be; but there is an article 50 process that is part of international law, to which we subscribe, and that is what will determine when we leave the EU.

What do the amendments do? They govern when clause 1 will become operative. Clause 1 repeals the European Communities Act 1972 and Government amendment 381 sets a date for that. That leads to a question. If the UK Government and the EU, according to the processes laid out by article 50 and by the remainder of the constitutional arrangements of the EU, come to some kind of agreement at a certain point, it would make sense to have a little more time than is allowed under the first clause of the article 50 process. Under the third clause of the article 50 process, we would have an odd situation, because there would be a slight delay in the timing of our withdrawal, where we would still, under amendment 381, be locked into abolishing the 1972 Act on a certain date, namely by 11 pm on 29 March 2019. There would therefore be an odd conflict of laws that obviously could not be allowed to persist.

Incidentally, there would then be perfectly obvious remedy: under Government amendment 400 there would be a need for emergency primary legislation to change the date. That is, of course, perfectly possible and I have no doubt the House and the other place would agree to such a measure, but it is a laborious process and it might jam up the works at just the moment when it is very important for the Government to have the flexibility to make an agreement of that sort. So, very modestly, all Government amendment 400 does is to provide for the ability of Parliament to adjust the date under those circumstances for the repeal of the European Communities Act to match the article 50 process.

[Sir Oliver Heald]

I am grateful to my right hon. Friend for giving way and for the very careful way in which he is setting this out. I hope he would agree that this is a much more commodious and confluent way than was previously the case. It will mean that article 50 and our domestic law are in better synchronisation. If I may, I pay tribute to him and to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) for working on this amendment and for coming up with a very happy solution to a thorny problem.

[Sir Oliver Letwin]

I am grateful to my right hon. and learned Friend, to the many right hon. and hon. Friends who signed up to the amendment and, above all, to the Government for turning it into a Government amendment.

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

If the European Communities Act 1972 is abolished on 29 March 2019 and that is the legal basis for following the European Union’s rules at the moment, what does the right hon. Gentleman think will be the legal basis for following the European Union’s rules during the transition period?

[Sir Oliver Letwin]

That is a very interesting question, to which we will know the answer when we have seen the text of the agreements that lead to the withdrawal and implementation Bill and when Parliament accepts it. I apologise to the right hon. Gentleman, but I maintain steadfastly the effort to use the Committee stage of this Bill to speak about this Bill, this clause and this amendment, and not some extraneous consideration.

[Helen Goodman]

Will the right hon. Gentleman give way?

[Sir Oliver Letwin]

I will, but it will be for the last time, because I want to bring my remarks to a close. I do not want to detain the Committee for long.

[Helen Goodman]

We have heard many times from Conservative Members that the date of 29 March 2019 cannot be moved because we have triggered article 50 and the process has a two-year limit. Will the right hon. Gentleman set out for the Committee what he thinks would happen in practice if the powers under amendment 400 were used by the Government?

[Sir Oliver Letwin]

I am surprised by the hon. Lady. I have known her a very long time and I know she is extremely assiduous and very intelligent, so she will have read article 50 and observed that it contains an express provision for agreement between the EU and in this case the UK to delay the date which would otherwise pertain. In fact, there are also rules for what is required on the EU side by way of unanimity to permit that to occur. There is no question, therefore, of the Government ever having asserted that they could not change the article 50 date; they have always said and known that it is possible to change it. The question, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) said a moment ago, is how we make sure that UK law marches in step with whatever happens under the article 50 process.

[Mr Rees-Mogg]

May I trouble my right hon. Friend?

[Sir Oliver Letwin]

My hon. Friend is so important in these proceedings that I will give way to him, but then I really am going to stop taking interventions and finish.

[Mr Rees-Mogg]

I do apologise. I did not want to trouble my right hon. Friend, but the two-year timeframe under the article 50 process is a deadline, not the point at which we necessarily leave; it is the point at which we leave in the event that no deal is reached beforehand. It is perfectly possible, should the negotiations go well, for an earlier date to be agreed.

[Sir Oliver Letwin]

Oh, my hon. Friend is absolutely right—that is of course the way that article 50 works. My point was merely that it also provides in the event that the opposite occurs—the negotiations take even longer than anticipated, or the negotiations come to an end but ratification takes a bit longer than anticipated, which could well happen—for an agreement to be reached to extend the date, which is what would then cause the incommensurability with UK law, unless we have adequate provision on the UK side. That is what amendment 400, to which, I am pleased to say, he is a signatory, provides for.

I want to say one more thing before I sit down. I am glad—I hope that the Minister will confirm this from the Dispatch Box—that the Government have said throughout this discussion that they will bring forward an amendment to make sure that the statutory instrument that might be triggered under amendment 400 would be under the affirmative procedure, although I think that the amendment will have to be tabled on Report because of how Bill proceedings work.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

I am happy to tell the Committee that that is the case, as I shall confirm later.

[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.

[Helen Goodman]

rose—

[Sir Oliver Letwin]

I am terribly sorry, but I am not going to take any further interventions. I am going to sit down in a second. I only want to say that I am profoundly grateful, not only to my right hon. and hon. Friends who have joined us in this amendment, but to the Government. This is exactly the way to deal with these things: find a sensible compromise that brings everyone on the Government Benches together and makes the Opposition entirely irrelevant to the discussion.

[Paul Blomfield]

It is, on this occasion, a real pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who was at his erudite best in critiquing Government amendment 381, echoing many of the points the Opposition made on day one of the Committee stage. It was also very helpful that he spoke so clearly on the flexibility provided in the article 50 process, in contrast with the remarks he directed against my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) who made exactly that point only last week. It is good to see the right hon. Gentleman moving on.

I rise to speak in favour of amendments 43 to 45 and 349, which are tabled in my name and those of my right hon. and hon. Friends. Let me, however, turn first to Government amendment 381, which revives, on this last day of the Committee stage, the issues that we debated on the first. The two solitary names on the amendment say everything about its purpose: the Secretary of State for Exiting the European Union and the hon. Member for Wellingborough (Mr Bone), neither of whom is present. We are seeing an alliance between the Government and, on this issue, one of their most troublesome Back Benchers.

As I think the right hon. Member for West Dorset made clear, it is not as though the amendment adds anything to the withdrawal negotiations. Indeed, it hampers the process. It is just another example of the Government’s throwing red meat to the more extreme Brexiteers on their Benches. As we said on day one, the amendment is not serious legislation. It is a gimmick, and it is a reckless one—in relation not just to the flexibility on the departure date to which the right hon. Gentleman referred, but to the wider aspects of exiting. It reaches out to those who want to unpick the Prime Minister’s Florence speech and the basis for a transitional period.

Setting exit day “for all purposes” as one date means the end of the jurisdiction of the European Court of Justice at the point at which we leave the European Union. As we warned the Government, that would make a deal with the EU on the transitional period impossible. We also warned the Government that they could not deliver the support of the Committee of the whole House for the amendment, and that was confirmed by the tabling on Friday of amendments 399 to 405. Just as the Government have caught up with the Labour party on the need for a transitional period, by cobbling together this compromise in the face of defeat they have caught up with us on the need for flexibility on exit days for different purposes. The Solicitor General is raising his eyebrows at me. Perhaps it would be fairer to say that the Government have caught up with themselves. The Bill as originally drafted did not include amendment 381. The Government have recognised that it is nonsense, and are seeking to find a way out. We will go for the more straightforward way by seeking to vote it down.

Amendments 399 to 405 give Ministers the power to set exit day through secondary legislation. We would give that power directly to Parliament, for all the reasons that we set out last week. We will therefore support amendments 386 and 387, tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) along with members of five parties, and new clause 54, tabled by the right hon. and learned Member for Rushcliffe (Mr Clarke). As the right hon. and learned Gentleman said earlier, he tabled it helpfully to allow the Government to embed the Prime Minister’s Florence commitments in the Bill.

Let me now deal with our amendment 43 and consequential amendments 44 and 45. On Wednesday evening, Parliament sent a clear message to the Government: we will not be sidelined in the Brexit process. The passing of amendment 7 was a significant step in clawing back the excessive powers that the Government are attempting to grant themselves through the Bill, and in upholding our parliamentary democracy. As with the final deal, Parliament must have control over the length and terms of the transitional period, and our amendments would provide that. The Prime Minister has eventually recognised that she was tying her hands behind her back with her exit day amendment, but amendments 399 to 405 are not the solution. They simply loosen the legislative straitjacket that the Government unnecessarily put on themselves. The Government must respect the House and accept that Parliament, not Ministers, should set the terms and length of a transitional period.

As I said in our earlier discussion this afternoon, there is a clear majority in this House for a sensible approach to Brexit and to the transitional arrangements. That brings together business and the trade unions and many other voices outside this place, just as it brings together Members on both sides of the House.

The Prime Minister knows we are right on the transitional arrangements, as her Florence speech made clear:

“As I said in my speech at Lancaster house a period of implementation would be in our mutual interest. That is why I am proposing that there should be such a period after the UK leaves the EU…So during the implementation period access to one another’s markets should continue on current terms”.

But every time she reaches out for common sense, and tries to bring the country together and to build the deep and special partnership she talks about, the extreme Brexiteers step in, trying to unpick our commitments, and setting new red lines, whether on the Court of Justice or regulatory divergence, which they know will derail the negotiations and deliver the complete rupture they dream of. So the transitional arrangements, which are important both for the interim and in positioning us for our longer term future, must be in the hands of this Parliament.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

[John Redwood]

There is also the point that, if we are scrutinising that after it has happened, that is not a lot of use. That can alert Parliament and the public to problems that the new law might create, but if it has been agreed under the rules, it is law and we have to do the best we can and live with it.

Having sat through quite a few debates on the Floor of the House—in Committee, and on Second and Third Readings of Bills—while being a Member of Parliament, I do not think I have ever seen a Bill that has been so extensively debated, dissected, discussed, analysed and opposed. A huge amount of work has gone in to proposing a very large number of detailed and rather general amendments, discussing the philosophy, principles and technical matters in considerable detail.

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

Before he moves on to another point, does my right hon. Friend agree that the narrowness of the Henry VIII clauses has actually been very considerably intensified by the amendments tabled on Report to clause 7(1) and 7(2)?

[John Redwood]

Yes, I agree. I think the Report stage may even produce some agreement between my right hon. Friend, me and our right hon. and learned Friend the Member for Beaconsfield that improvements have been made in that respect, with some powers for Ministers being narrowed and the House having an even bigger role. I am perfectly happy that that has happened.

The wider point I want to make is that this very extensive, forensic and thorough discussion could be a model for other legislation. It is interesting that MPs on the whole do not get as interested in other legislation as they have done in this Bill. The Lords should take into account the fact that, on this occasion, the Commons has done its work very extensively and thoroughly, and has considered a very wide range of issues in amendments. I am sure that the Lords will take that into account when it comes to have its important deliberations on this legislation.

--- Later in debate ---

[The Solicitor General]

I wish to speak in support of amendments 37 and 38 in the name of my colleagues in Government.

I will try and answer the question that was put to me by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who has been getting frustrated in these debates about the somewhat technical nature of ministerial responses. Well, this is a very technical Bill. Like its illustrious predecessor, the European Communities Act 1972, it is a Bill of constitutional importance; it is a framework Bill. It is not—I stress this, because it is most important—it is not a Bill that seeks to convey a policy or a particular aspect of policy that we have discussed today. It is a framework that is designed to ensure that the law that is applied up to exit is downloaded in as clear and proper a way as possible because, to be consistent with the rule of law, the law needs to be accessible, it needs to be clear and it needs to be well understood. That is the fundamental basis of my concern about today’s amendments—that in seeking to retain the charter of fundamental rights in domestic law after exit, not only do we sow potential confusion but we fundamentally misunderstand what that charter means in the first place.

[Sir Oliver Letwin]

The Government have introduced welcome amendments to clause 7. While my hon. and learned Friend is talking about clarity, I just want to ask him to confirm, at this early stage in his remarks, that the Government will bring forward the amendments that we were hoping for, and that I think my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I were, if not promised, at least led to expect, when clause 6 is discussed in the other place.

[The Solicitor General]

I am grateful to my right hon. Friend. If he had sufficient time at his disposal, he might have seen the evidence that I gave to the Constitution Committee in the other place, in which the issues in clause 6 were discussed—the interpretive provisions that he and I and others debated in Committee.

May I come back to the fundamental point about the charter? It was never intended to create new rights. It was a document that reaffirmed rights that already existed in EU law.

--- Later in debate ---

[Joanna Cherry]

The hon. Gentleman is absolutely right. That is the gravamen of the concern. The Government are given too much discretion to decide what they consider is appropriate, rather than what is necessary for the purposes of the Bill.

I have no doubt that, later in the debate this afternoon, a Minister will rise to reassure me and others that the Government would never do anything inappropriate, but I think we know what we all think about that. And I am talking not just about this Government; all Governments, particularly when afforded too much Executive power, will seek to abuse it—that is in the nature of the Executive.

In Committee, I was rather struck by a sweeping statement by the right hon. Member for West Dorset (Sir Oliver Letwin), who said that, apparently, we all know what “appropriate” means and that the courts will know what it means. If that is so, why does the Minister not tell us what “appropriate” means in this context? Many distinguished lawyers have said that the courts will not know, and the judiciary themselves have expressed concern about the breadth of discretion given to the Government by the use of the word “appropriate” rather than the word “necessary”.

The matter has been raised by the Delegated Powers and Law Reform Committee, which recommended that the power in clause 7

“should only be available where Ministers can show that it is necessary to make a change to the statute book”.

I have no doubt that an amendment on that will be forthcoming in the House of Lords, but as I said earlier in the debate, it is important that this democratically elected and accountable House debate these matters and that we get some colour from the Government on their position.

The issues raised by the amendment have also been referred to by the Scottish Parliament’s Finance and Constitution Committee, which has produced an interim report on the Bill and supported the recommendation. I think that I am right in saying that the report was supported by a number of Conservative Members of the Scottish Parliament, so this is not really a party political issue. I do not want us to withdraw from the EU, but I recognise the need for this legislation if we are going to do so, and this amendment seeks to circumscribe Executive power.

[Sir Oliver Letwin]

I can see the hon. and learned Lady’s point that, in the light of the changes that the Government have made to clause 7, it may be appropriate to change “appropriate” to “necessary” in the schedule. However, will she confirm that her amendment 49 does that for devolved authorities’ Ministers, not for the Crown, and that that comes later in the sequence of amendments?

[Joanna Cherry]

Yes. What is sauce for the goose is sauce for the gander. It would not be very consistent if I thought that the British Executive should not get sweeping powers but the Scottish Executive should. All these arguments about curtailing Executive power apply to all Governments in these islands, not just to this Government. At the moment—my hon. Friend the Member for North East Fife (Stephen Gethins) will address these matters later—the Scottish Government are getting precious few powers in relation to these matters, and that is a grave concern. However, others will address that later.

The Solicitor General said he had listened with care to what was said about this issue in Committee, so what will Ministers do about it? Have they spoken to the judiciary about this? Have they taken on board the judiciary’s concerns about the scope of discretion granted to them and their fear of that, given recent politically motivated attacks on the judiciary? Have Ministers taken on board the concern expressed on both sides of this House and by many organisations outwith it about the broad scope of the powers currently afforded?

As I said, I have no doubt that these concerns will be raised in the Lords, but now is the time for the Government to tell this democratically elected and accountable House what they are going to do to circumscribe the exercise of Executive power in this Bill.

--- Later in debate ---

[Anna McMorrin (Cardiff North) (Lab)]

The biggest scandal about clause 11 is that the UK Government know that it is completely unacceptable; they are just not brave enough to admit it. Ministers, Tory MPs and civil servants have privately—and publicly, sometimes—acknowledged how extremely ill-advised it is to remove the power of the devolved Governments over devolved areas. This UK Government committed to introducing amendments on Report to address this, but where are they? Where is the Government’s acknowledgement that they have got this wrong?

[Sir Oliver Letwin]

No doubt the hon. Lady will develop her argument, but will she just clarify something? It is not the case, is it, that anything is being removed from the devolved authorities? It is a question of whether things that currently reside in Brussels should be devolved rather than returned to Westminster.

[Anna McMorrin]

There are things that are devolved and on which we work with the EU, and we do not want those devolved areas returned centrally to the UK Government, as part of a power grab, rather than to our devolved Administrations. The Welsh Government are clearly arguing that case, and so are the Scottish Government.

European Union (Withdrawal) Bill

Oliver Letwin Excerpts

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

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

After the sifting committee has received an explanatory statement and before it makes a sift, will the committee also have access to Ministers to question them if it cannot understand what the affirmative or negative instrument is about?

[Mr Baker]

I very much hope that the committee will be able to understand things through our meeting the requirements for explanatory memorandums that we have set out in the Bill, but I would of course expect Ministers to be helpful to the committee. We need to get statutory instruments through smoothly, and we would want to support the committee in reaching its decisions.

I will now jump ahead in my remarks to deal with new clause 3 and the Belfast agreement. New clause 3, which was tabled by the hon. Member for Nottingham East (Mr Leslie), is important, and I reiterate that the Government remain steadfast in their commitments to the Belfast agreement and its associated obligations under international law.