European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[The Solicitor General (Robert Buckland)]

I am listening with great care to the hon. and learned Lady. She will agree that references to the Court of Justice are made by the courts to interpret a particular provision of EU law, not by individuals. That is an important difference that I am sure she will appreciate.

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[Robert Neill]

That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier.

Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve.

These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and TheCityUK, and I am indebted to the Remembrancer’s Office of the City of London corporation for the drafting of these amendments—it takes the credit for the ingenuity.

[The Solicitor General]

I absolutely take the spirit in which these amendments are made, and I am grateful to the Remembrancer’s Office, but does my hon. Friend not agree that we need to be cautious? He thinks that this general interpretive approach will, of itself, amend deficiencies, but does the fact not remain that we would still have to amend deficiencies in legislation, even with these otherwise helpful-looking provisions?

[Robert Neill]

I do not disagree with the Solicitor General about that, but I suggest that it is not an either/or scenario. I very much hope that he will indicate that he is prepared to continue working with me and the authors of the amendments to take this forward. I see that he nods his assent, and I am sure that we can find a constructive means of doing so.

Let me explain why this is important. The first of the rules, in subsection (A3), would confine the territorial scope of the retained EU law to the UK. That would put it on the same territorial footing as domestic law, therefore ensuring that as a general principle, retained EU law would no longer enable or require people or businesses in the UK to do, or to stop doing, something in an EU country. It is perfectly logical from that point of view.

The second rule would ensure that reference to a member state in an EU law that has been domesticated was taken, post Brexit, as a reference to the UK. That would ensure that domesticated EU law would in fact fully apply in the domestic sphere, removing any ambiguity on that point. That will be necessary in a large number of instances to avoid the situation in which the UK will, in effect, be treated as a third country for the purposes of its own laws where retained EU law is currently framed by reference to the whole EU. That would be an absurdity, and we are seeking to remove that risk.

The third rule, in subsection (A5), would transfer all the functions exercised by EU bodies to the Secretary of State. I take the Minister’s point that not all those will necessarily be exercised by the Secretary of State. It is not prescriptive in that way—it need not be, and we can talk about that—but it would deal with the many instances where such functions are transferred to an appropriate Secretary of State as well as providing, again, a legislative backstop to cater for circumstances where the alternative arrangements had not been put in place in time, so that there is no cliff edge in that regard.

The fourth rule deals with the many situations where domestic authorities are required, either outright or as a precondition, to exercise their own functions to deal with EU bodies or authorities in member states. What does that mean in practice? It covers, for instance, cases where the UK body has to notify, consult or get the approval of an EU body before taking a particular course of action.

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[Robert Neill]

That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets—regulatory equivalence will be critical to achieving that—and it would do so without the risk of facing any inappropriate legal constraints on the UK’s own operations once we have left.

I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day.

Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.

[The Solicitor General]

For the sake of clarity, I think that my hon. Friend will find that schedule 8(25) contains enough scope for other documents of the type that he mentions to be considered by the courts. I hope that I have given him enough reassurance on that point.

[Robert Neill]

I am grateful to the Solicitor General for that clarification. Perhaps he could confirm that he is happy to meet me and we can discuss that. [Interruption.] He says that he is of course happy to do so. I am grateful to him for that very constructive response, and characteristically so. That will enable us to deal with things like negotiating texts, which we sometimes know of as the travaux préparatoires within the EU context. [Interruption.] Again, the Solicitor General confirms that that is the sort of thing that we can discuss.

Why is that important to the International Regulatory Strategy Group, and why is the group central to this? Its membership includes virtually all the significant representative institutions of the London financial community: the stock exchange, the Association for Financial Markets in Europe, the Association of British Insurers, the British Bankers Association, the City of London corporation and major commercial organisations such as Credit Suisse, Aviva, Allen & Overy, Allianz, Fidelity, HSBC and Lloyds. The list includes all the key underpinners of the City’s operation.

We need to take those important matters into account, and I am grateful to the Solicitor General for his willingness to meet and discuss them. I commend to him and other Ministers the observation made by my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) about the Francovich cases. It clearly cannot be the Government’s intention to remove people’s opportunity to seek remedies for wrongs that were done prior to our departure. My right hon. Friend raises a critical issue, and it is important to get this right.

I hope that Ministers will observe that the guidance in clause 6(2) is clearly not sufficient to meet the concerns of our senior judiciary and that they have said as much. When Lord Neuberger, a distinguished President of the Supreme Court, says that, ironically, the discretion is so wide that it puts judges at a degree of risk of political attack, he has to be taken seriously. Several right hon. and hon. Members have praised the quality of our judiciary, and I totally agree with them. We ought to listen very carefully when our judiciary say that, as a matter of protection against malicious attack of the sort that they have suffered in the past, they look to Parliament to safeguard their ability to function independently in cases that are quite politicised.

[The Solicitor General]

I am listening with care to my hon. Friend. Will he accept from me that there is another danger, namely that by using too many prescriptive words in the Bill, we could fetter the discretion of the courts in a way that they would find equally unacceptable? There is a balance to be struck here.

[Robert Neill]

There is, and that is why it is all the more important—perhaps unusually so—for Government to talk quietly with the judiciary to find out what they are saying. They cannot compromise their independence, but those of us who are in touch with them want to make sure that the Government understand the root of their concerns. I am sure that there is a constructive way forward on that.

I know that the Solicitor General will be aware of the problem, because it was referred to in the Justice Committee’s report in the last Parliament. I also draw his attention to the concerns raised by Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, in the evidence that he gave only a couple of days before he retired from that post. He gave a pretty clear steer on the sort of thing that could be helpful and posited various types of language. I hope that the Solicitor General accepts that we need to look further at the matter, and I hope that we can do that constructively as we take the Bill forward.

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Let us suppose that in this instance, for some very good reason, such as the principle of equity, natural justice or some such thing, the Supreme Court judges in the opposite direction from that of the lower courts—it has now created a precedent. The next case of a similar variety appears in a lower court, which is adjured by the statute, notwithstanding the Supreme Court’s decision, to follow clause 6(3)(a) and to apply the rulings of the ECJ, however expansive and contrary to the plain text of the treaties they might have been, and notwithstanding whatever the Supreme Court has said. Or is it? Should the lower court instead apply the principle applied by the Supreme Court when, in relying on clause 6(4)(a), it departed from retained case law?

[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.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[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.

[The Solicitor General (Robert Buckland)]

I rise to speak in support of clauses 2 and 3. It is a pleasure to participate at Committee stage, which is one of my favourite stages of debate because it is a time when we can all can come together in a mature way to look at the detail of the Bill and debate it as grown-ups. May I say to my right hon. and hon. Friends on the Government Benches, and indeed to all hon. Members, that I certainly intend to take very seriously the points that have already been made, and those that will be made today, in future Committees days, and—I assure my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) of this—on Report?

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[Michael Tomlinson]

I thank my hon. and learned Friend for giving way so early in his remarks. Will he also reflect on: the Health and Morals of Apprentices Act 1802; the Factory and Workshop Act 1878, which was brought in by Disraeli; the 1901 Act brought in by Salisbury; and, if we wind forward to the former Prime Minister, David Cameron, rights, such as maternity and paternity rights, that far exceeded the EU’s minimum guarantees?

[The Solicitor General]

My hon. Friend’s point is well made. We are talking about centuries of progress. To bring things right up to date, the Prime Minister made a pledge in her Lancaster House speech, which was underlined in our manifesto—I can underline this again today on behalf of the Government—that the Brexit process will in no way whatever be used to undermine or curtail the rights of workers that are enshrined both in domestic law and in law by virtue of the European Union.

[Frank Field]

When the right hon. and learned Member for Beaconsfield (Mr Grieve) allowed me to intervene, I asked whether a consensus was emerging. New clause 50 states that all European laws and regulations would be brought on to our statute book by European exit time, but is the Minister saying that that will actually occur and that such an amendment is unnecessary? If that is the case, some of us will not have to move our amendments.

[The Solicitor General]

In a nutshell, I would say that the right hon. Gentleman’s amendment and those associated with it are indeed unnecessary. I will set that out in more detail when I come on to address his point and those made by the hon. Member for Greenwich and Woolwich (Matthew Pennycook), who spoke to the amendments very helpfully, if I may say so with respect.

[Stephen Doughty]

The hon. and learned Gentleman knows that I respect him. If we take him and what he is saying at face value, I do not think he has a lot to fear from new clause 55, new clause 25 or the other measures being proposed as they would simply secure what he is saying. However, does he understand why many of us have suspicions when we hear speeches about a low-regulation economy from Members such as the hon. Member for North East Somerset (Mr Rees-Mogg) that are then retweeted by the Department for International Trade? That is where these deep worries are coming from.

[The Solicitor General]

I absolutely understand the concerns of hon. Members on both sides of the Committee. The Government’s policy is clear, and I shall address in further detail where the Government stand on those amendments.

[Frank Field]

Will the hon. and learned Gentleman give way?

[The Solicitor General]

May I make some progress at this stage? I will certainly invite the right hon. Gentleman to intervene later, but I want to develop my arguments on the clauses.

Clause 2 preserves the domestic law we have made to implement our EU obligations. More specifically, the clause will preserve any domestic regulations made under section 2(2) of, or paragraph 1A of schedule 2 to, the European Communities Act 1972. Without clause 2, such legislation would lapse at the same time as the repeal of the 1972 Act, meaning that there would be substantial holes in our statute book on the day we leave the EU. The clause is therefore essential to preserve our statute book and provide certainty over what our law is. I think that all Members would agree that at the heart of the rule of law is the need for certainty. That was why the Prime Minister put that at the top of her list when she outlined her criteria in the Lancaster House speech, and it was why I campaigned very strongly on that when standing for re-election.

[Lady Hermon]

I am listening to the Minister very patiently. He, like other Members who have looked closely at the Bill, will know that clauses 2 and 3 both conclude with a key phrase:

“This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”

We cannot possibly consider clauses 2 and 3 without looking at schedule 1, which removes overnight the general principles of EU law such as non-discrimination, proportionality and respect for fundamental rights.

[The Solicitor General]

indicated dissent.

[Lady Hermon]

The Minister may shake his head and he may not agree, but that is in the Bill he is advancing in this Chamber.

[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?

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[The Solicitor General]

That is the nub of it. I hope that I can reassure right hon. and hon. Members that the Government’s policy is very clear and delineated, and that this is not some out-of-control power grab involving the use of the Bill—this is a framework and process Bill—as a basis to change policy. That is not the intention of the Bill.

[Frank Field]

The Minister has persuaded me that I do not need to speak to or move new clause 51, which relates to the point raised by the right hon. Member for West Dorset (Sir Oliver Letwin). Given the general wish in the country to take power back, new clause 51 would provide a place where power is supposed to come back to—the actual authorities—and set the means by which we review what we want to keep, extend, amend and kick out. Will the Government allow us to decide the mechanisms by which we undertake that review?

[The Solicitor General]

I take issue with the mechanism in new clause 51, which would be rather burdensome and could increase uncertainty, which would not be good for businesses or citizens, but I will take the spirit in which the right hon. Gentleman tabled it very much to heart and mind when considering how to develop the ongoing dialogue about the means by which this place can sort the wheat from the chaff, if I may use that phrase.

[Frank Field]

I hope that this will be my last intervention. The purpose of the measure is to make sure that we all know that the task will be massive. I thought the idea preposterous that most of us would be prepared to give up all our other interests to participate in that mega review, which the right hon. and learned Member for Beaconsfield said might go on for 20 years, and I thought we could hand back quite a bit of it to the Government, providing we could keep hold of the reins.

[The Solicitor General]

The right hon. Gentleman is right to call this task mega. I remind the House that, according to the EU’s legal database, more than 12,000 EU regulations are currently in force here. As for UK domestic legislation, the House of Commons Library indicates that there have been around 7,900 statutory instruments implementing EU legislation. This is indeed a mega task—to coin his phrase.

[Geraint Davies]

I accept that there is no intention that the Bill takes away the rights and protections enshrined in EU law and that the Bill does not imply that they will be taken away. The problem is that the Bill enables future Governments to do so, and there is therefore a need to protect those fundamental rights and protections by providing that they can be amended only through primary legislation. They need to be separated from the great mass of technical stuff that can be sifted by the European Scrutiny Committee or other such turbo-charged Select Committees, which could look at the minutiae.

[The Solicitor General]

The hon. Gentleman has been a committed pro-European throughout his career. I enjoyed his YouTube videos during the campaign—[Interruption.] I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. [Interruption.] He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.

[Mr Kenneth Clarke]

My hon. and learned Friend accepts that the problem is that the Bill includes powers that could be used to make drastic reductions in environmental standards and other things without any proper parliamentary process. There is a widespread consensus among remainers and leavers that we do not want the powers to be used in that way. He sounds as though he is about to reassure us that the policy of the present Government is that although they are taking the powers, they have no intention of using them for such purposes. I have the highest regard for him—he is a personal friend—and I quite accept that a Government led by this Prime Minister is not about to use draconian powers to lower standards, as her instincts are quite the other way. Given that the powers are therefore not needed—we do not need a Bill to give us powers that no one wants to use—why can we not amend the Bill to put it beyond doubt that no such attempt will be made? Heaven forfend that my party should swing to the right at any time in its long and distinguished history, but there are members of the present Government who are not excessively fond of lizards and bats, or workers’ rights. We would all be reassured if he undertook to put in the Bill a reduced level of powers.

[The Solicitor General]

My right hon. and learned Friend knows that I hold him in the utmost respect—reverence even—but, having discussed the mega task that faces us with the right hon. Member for Birkenhead (Frank Field), I think he will agree that it is probably safer and wiser for the Government, with a belt-and-braces approach, to make sure that we do not have any slips between cup and lip, and that there are no lacunas or loopholes in the law that could actually endanger these protections and rights.

[Liz Kendall (Leicester West) (Lab)]

I share the concerns of the right hon. and learned Member for Rushcliffe (Mr Clarke). If the Government will not use the powers, why are they giving them to themselves? The Minister talks about dialogue and reassurance, but I have not heard anything practical from him about how he will change the Bill to address these concerns. What is he going to do?

[The Solicitor General]

I will come to that, but first I want to deal with the amendments tabled by the hon. Lady’s colleagues.

[Lady Hermon]

rose—

[The Solicitor General]

I need to press on, because other Members want to speak and I am mindful that you, Dame Rosie, want as many as possible to have the opportunity to do so.

[Lady Hermon]

rose—

[The Solicitor General]

I am sorry. I need to press on.

Clause 3 converts the text of direct EU legislation, as it operates at the moment immediately before we leave the EU, into our domestic law. Such existing EU law is currently given legal effect in our law via section 2(1) of the 1972 Act. Without clause 3, those laws would no longer have effect in domestic law when we leave and repeal the 1972 Act. Again, that would leave holes within our domestic law. More specifically, the clause converts EU regulations, as well as certain decisions and tertiary legislation, into domestic law. It also converts adaptations to instruments made for the EEA. The clause is necessary to ensure that we fully keep existing EU laws in force within the UK.

In general, these instruments, or parts of them, will be converted only if they are already in force before exit day, meaning that an EU regulation set to come into force six months after we leave will not be converted into UK law. However, some EU instruments will be in force but will apply only in a staggered way over time, with different parts applying at different times. In those circumstances, only those parts that are stated to apply before exit day will be converted.

[Robert Neill (Bromley and Chislehurst) (Con)]

I might be anticipating the Minister’s later remarks, but does that not leave us with a possible loophole when we have participated in the preparation of measures that have not yet come into force and we might regard as thoroughly desirable, but we cannot by any means bring them into force?

[The Solicitor General]

I will deal briefly with my hon. Friend’s amendment 356. As I was saying, we have some examples here, such as the EU’s fluorinated greenhouse gases regulations, which are stated as applying from 1 January 2015. They include prohibitions on placing certain substances on the market from specific dates, several of which fall after exit day. With respect, however, his amendment could create further confusion, because there needs to be one standard cut-off point at which the snapshot of law is taken, and that is why exit day should apply. When it comes to measures affected by the cut-off point, we will do whatever is necessary before exit day to provide certainty for business, including by bringing forward further legislation, if required, to cater for those particular situations. If I may return to develop—

[Margaret Greenwood ( Wirral West) (Lab)]

Will the Minister give way?

[The Solicitor General]

I will certainly take more interventions, but I am mindful of the time.

May I deal with clause 3? The clause converts only the English language version of the instrument. Other language versions will remain available, as they do now, for interpretive purposes. Finally, as hon. Members would expect, the EU instruments that have never applied in the UK will not be converted under the clause. That includes instruments in respect of the euro and measures in the area of freedom, security and justice in which this country did not choose to participate. Those exempt instruments are described in schedule 6.

[Margaret Greenwood]

The Government have said that they will guarantee existing employment rights derived from the EU, but the EU is also looking at proposals to extend those rights by, for example, requiring employers to give workers on zero-hours contracts a written statement of their pay rates and expected hours of work. Will the Government champion employment protection and require employers to give workers on zero-hours contracts a written statement of their terms and conditions?

[The Solicitor General]

The Government, through the Taylor review, have been committed to looking at all aspects related to zero-hours contracts, and this, post-exit day, will be a matter for the House and this Parliament to determine. It may well be that this or a future Government make changes of the sort that the hon. Lady and others are looking for. The fact that we are leaving the EU in no measure whatever rules out the potential for those changes to be made.

May I deal with—

[Lady Hermon]

rose—

[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.

[Lady Hermon]

Will the Minister give way?

[Liz Kendall]

Will the Minister give way?

[The Solicitor General]

I think I must give way to the hon. Member for North Down (Lady Hermon), who has been waiting for me to allow her to intervene.

[Lady Hermon]

I am extremely grateful to the Minister, because I took him at his word. In his opening remarks, he said how much he welcomed consideration in Committee of any Bill because it allowed us to debate in an adult fashion, so I am grateful to him for, at long last, giving way.

May I seek clarification, without the Minister referring to his very complicated notes? People need to understand what is happening, and I would like him to explain, before anyone withdraws or decides not to press their proposal, how directly effective provisions of EU law will be safeguarded. These are rights that arise through EU jurisprudence, not from a directive or a regulation. I want guarantees from him that directly effective provisions are protected beyond the Bill.

[The Solicitor General]

One reason the hon. Lady has not heard me outline that concern in detail is that clause 4 is the sweeper clause and my hon. Friend the Minister of State, Ministry of Justice, will deal with that in the second part of the debate. I assure her that, by the end of today’s proceedings, her concerns will, I hope, have been addressed during the debate on clause 4.

I want to deal with the amendments, having, I hope, made—

[Mr Kenneth Clarke]

Will my hon. and learned Friend give way?

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

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

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

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

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

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

--- Later in debate ---

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

The Minister has talked quite a lot about the purpose of this exercise being to provide continuity and certainty, but is it not the case that that will be true only on day one? He cannot guarantee any continuity or certainty on day 100 or day 1,000, but is not that, for many of his colleagues, the whole point of leaving the European Union?

[The Solicitor General]

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

[Mr Grieve]

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

[The Solicitor General]

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

[Mr Wragg]

Will the Minister give way?

[The Solicitor General]

No, I would like to press on, if I may. I am mindful of the time, and I want to make sure that we get these points on record.

I want to deal with the points, which I hope hon. Members want to hear, about the Government’s commitment not only to workers’ rights but to consumer protection rights and environmental obligations—all of which have been very much a part of the work that we have done with our European partners during our 43 years of membership of the European Union. That does not change. I want to move on to some of the other amendments—

[Mr Kenneth Clarke]

I thank my hon. and learned Friend for giving way. This is quite an important issue. A moment ago, I thought that he was on the brink of saying that he would try to come back to the House on Report with the Government’s own legislative proposals to give effect to the good intentions that he has assured us the Government entirely share, but at the last moment he hesitated. When he said yes, was he committing the Government to putting in the legislation the best solution in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in particular, so that we could all be assured that the Bill will leave this House in a way that we entirely unanimously accept?

[The Solicitor General]

I am committed to trying to achieve the best solution, whether it is in the Bill or in an amendment to Standing Orders. I will not presume to tie the hands of this place. I hope that my right hon. and learned Friend can take that as a clear assurance that I will do whatever I can to get this right.

The first and most important point to be made about new clause 15, tabled by the hon. Member for Nottingham East (Mr Leslie)—it has, I think, already been made by several other Members—is that we have strong rights and protections here, domestically, which are not contingent on our future membership of the EU. We have a proud record, and in many areas our standards far exceed the minimum standards required by EU law—for instance, entitlement to annual leave and maternity allowances. When we leave the EU, it will be for this Parliament and, indeed, the devolved legislatures to determine the law and the rights that apply here in the United Kingdom.

I must say to the hon. Member for Nottingham East, with respect, that in my view the new clause would impose an onerous and unnecessary duty on the Government. There will be nothing to stop future Governments of whatever hue, or future Parliaments when exercising their sovereignty, from considering any legislation that the EU or the European Economic Area may make. They need not be obliged to do that; it will be a matter that they can take into consideration. A requirement to report to Parliament each and every time the EU amended its rules would be excessively onerous, given the number of reports that might be made and considered.

Moreover, we do not want to give the inappropriate impression that the path followed by our European partners will always be the path that we as a UK Parliament should follow. While I am entirely supportive of many measures that ensure that we work, converge and keep pace with our European partners, there will of course be plenty of opportunities for us to forge our own path. That, after all, is what the vote was all about.

[Mims Davies (Eastleigh) (Con)]

I thank my hon. and learned Friend for giving way. He is being very generous with his time, and he is making a very useful and, I think, positive speech explaining how the Bill will deal with people’s concerns about the cliff edge and limitations. Does he agree that it also gives us a chance to support the working statute book, ensuring that we look after our own environment, consumer rights, workers’ rights and LBGTI rights?

[The Solicitor General]

My hon. Friend is a passionate campaigner on many of those issues. I can reassure her and her constituents that that is precisely what we seek to do.

I hope that I have dealt with the new clauses tabled by the right hon. Member for Birkenhead—

[Frank Field]

I accept what the Solicitor General said about new clause 50, and I think we should thank him for what he said and what he will try to achieve. New clause 51 is about setting up mechanisms whereby the House could determine how the corpus of legislation and regulation brought into UK law could be reviewed. Will the Solicitor General say a word about that before I go to the Chair and say that I am satisfied in this instance as well?

[The Solicitor General]

I hoped that I had responded to new clause 51 in an earlier intervention. It is well intentioned, but the mechanism is too burdensome. It would impose an annual obligation to produce reports which I think would pile Pelion on Ossa, given the amount of work that we have to do in the House anyway because of the unusual circumstances that we face.

[Frank Field]

I do not think that the House has the appetite to undertake the review, given the ginormous amount of legislation that is coming over to us. I tried to get the Library to describe what would happen. Would this whole place be full of pieces of paper—full of legislation and regulations? How the hell are we, as individuals or groups, going to deal with that?

There is another crucial point. Given what was said by the right hon. and learned Member for Rushcliffe (Mr Clarke), might there be discussions before Report about the form in which the Government might bring back the sentiment involved in what the Solicitor General is saying, and what we are all saying, so that we might vote on that?

[The Solicitor General]

Yes, indeed.

I shall now move on to new clauses 9, 22, 23 and 29, which is linked to amendment 128, new clause 45 and amendment 217, which is linked to amendment 64. They all in various ways deal with the question of the EEA. As we have said on several occasions, this is not about the UK pursuing an off the shelf arrangement; it is the UK seeking a bespoke arrangement that works for us. In the Florence speech of 22 September—which happens to be my birthday, although I am sure there was no coincidence in that—the Prime Minister set out a vision for the new economic partnership: a new partnership that will empower us to work together in continuing to bring shared prosperity for the generations to come.

[Stephen Kinnock (Aberavon) (Lab)]

I accept of course that we should have on the table the option of creating a bespoke deal for our future relationship, but surely we would want to have a range of options and models on the table as we shape that deep and comprehensive partnership? Why would we want to take one of those potential models off the table now, as it could be the building block of something different coming further down the line?

[The Solicitor General]

I always listen to what the hon. Gentleman says with a great deal of interest, but I say in the context of the Bill—although mindful of the constraints of Committee debate—that the thrust of these amendments will not achieve what their movers seek, which is to keep this country in the EEA. That is because all the amendments are based on a mistaken understanding of the UK’s relationship with the EEA. The UK is a party to the EEA agreement in its capacity as an EU member state, so once we leave the EU, the EEA arrangement will no longer be relevant. It does not have a practical effect at international level, and domestic legislation cannot change that.

[John Redwood]

Will the Minister confirm that one of the few things remain and leave agreed about in the campaign is that we would be leaving the customs union and the single market, and we would not be doing a Norway? [Interruption.] Both sides said that, and the British public understood it.

[The Solicitor General]

My right hon. Friend and I were on opposite sides of that debate—indeed, we have been on opposite sides of the debate on Europe for the 20 years and more that I have known him—but I never said in the many arguments I made up and down the country that this was a have your cake and eat it withdrawal: if we voted to leave, it would mean we left the institutions of the EU, which included the customs union and the single market. That is why I campaigned against it, but I accept, as every democrat I know does, the result of the referendum.

I shall now move on, as swiftly as I can, to deal with the effects of these amendments.

[Mr Jim Cunningham (Coventry South) (Lab)]

rose—

[Heidi Alexander (Lewisham East) (Lab)]

rose—

[The Solicitor General]

I would love to give way to the hon. Lady, but I am mindful of the time, and Mr Hoyle is looking at me in a very stentorian way, so I had better follow that instruction.

There are some potentially detrimental effects of the amendments that I know hon. Members would want to avoid. Amendment 217 seeks to remove the annexes to the EEA agreement from the scope of clause 3. The hon. Member for Arfon (Hywel Williams) is not in his place at present, but the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) is here to represent their party’s interests, and I say to him that that amendment would not allow us to remain in the EEA, for the reasons I have set out, and it would damage the clarity and certainty we aim to provide.

As many hon. Members already know, the EEA agreement effectively extends the single market to three non-EU countries: Norway, Iceland and Liechtenstein. Annexes to the agreement specify which single market rules apply to those countries, along with any necessary adaptations, in order to make the single market properly operate with respect to these countries. Clause 3(2)(b) and (c), which amendment 217 would remove, provide that EU instruments which apply to the EEA will also be converted into domestic law. Those provisions are necessary to ensure that we fully preserve the existing laws and rules that apply here before our exit. They are not, and are not in any way intended to be, a means by which the UK ceases to be a party to the EEA agreement. The retention or otherwise of such annexes within our domestic law will not change that basic fact. The effect of amendment 217 would only be to leave gaps in the law which, as I have set out, would clearly be undesirable.

--- Later in debate ---

[Heidi Alexander]

Will the Solicitor General confirm whether the powers outlined in part 2 of schedule 8 and in clause 8 would allow Ministers to issue an article 127 notification under the EEA agreement?

[The Solicitor General]

That is not necessary. The provisions in schedule 8 are all about the frameworks, not the policy, and this Bill is not a vehicle for policy. This is a framework Bill that allows the law to operate within it. That is the distinction that I seek to draw. While I understand and respect the reasons behind the amendments, they do not deliver the policy outcomes that the hon. Lady and others may want.

[Alison McGovern]

Will the Solicitor General give way?

[The Solicitor General]

I will not give way any further.

It is our policy that we will not be a member of the EEA or the single market after we leave the EU, so introducing an obligation to produce a report on membership of the EEA, as new clauses 9 and 23 seek to do, is simply unnecessary.

I will now try to deal fairly with the Scottish National party amendments 200 and 201, which the hon. Member for Glenrothes (Peter Grant) spoke to. While we do not accept that the amendments are necessary, I welcome the chance to set out clearly the meaning of clause 2. Amendments 200 and 201 seek to provide clarity on precisely what is meant by “passed” in the context of the clause. Some have questioned the effect of clause 2 in relation to an Act that may have been passed by the Scottish Parliament, but which has not yet received Royal Assent when the clause is commenced.

We do not believe that there is an ambiguity. Clause 2(2) states that “EU-derived domestic legislation” is an enactment. As enactments can only mean something that has received Royal Assent, an Act of Scottish Parliament that has only been passed cannot fall within this definition, and it would therefore not be categorised as EU-derived domestic legislation for the purposes of the Bill. The reference to “passed” in clause 2 is therefore a reference to the purpose for which the enactment was passed, not the fact of whether it was passed. I hope I have been able to shed light on that area for the hon. Gentleman, and I invite him to withdraw the amendment.

Turning now to Plaid Cymru’s amendment 87, which is in the name of the hon. Member for Arfon, we do not accept the premise that lies behind the change. In trying to circumvent the provisions of clause 11, the amendment pays no heed to the common approaches that are established by EU law or to the crucial consideration that we—the UK Government and the devolved Administrations—must give to where they may or may not be needed in future. What is more, it undermines our aim to provide people with maximum certainty over the laws that will apply on exit day. The amendment would also be practically unable to achieve its underlying aim. The enactments that it takes out of retained EU law would also be taken outside the scope of the powers that this Bill confers on the devolved Administrations to allow them to prepare them for exit day. It would hamper their ability to address the deficiencies that will arise, and it would leave it likely that the laws would remain broken on the day of exit.

The process of making the statute book work for exit day is a joint endeavour between the different Governments and legislatures of the whole United Kingdom. This is an important project that entails a significant workload before exit day, which is why we are actively engaging with the devolved Administrations to build up a shared understanding of where corrections to the statute book would be needed. On that basis, I hope that the amendment will be withdrawn.

I hope I have dealt with the amendment in the name of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chair of the Select Committee on Justice.

[Robert Neill]

When the Minister talks about bringing forward a package on Report, do I take it that the amendment in my name and in the name of my hon. Friend the Member for Wimbledon (Stephen Hammond) is intended to be in that package?

[The Solicitor General]

I am always happy to engage with my hon. Friend and with my hon. Friend the Member for Wimbledon (Stephen Hammond). I know the spirit in which they tabled the amendment, and I look forward to the dialogue to come.

I commend clauses 2 and 3 to the House.

[Several hon. Members rose—]

--- Later in debate ---

[Mr Leslie]

I would want us to shape those regulations, because we are going to be affected by them. If our near neighbours—500 million residents—operate under one regulatory regime, many of our products and services will have to comply with it. It is far better that we are able to take part in the discussion and shape those regulations. In accordance with the Bill, we may leave the EU—if that does come to pass—but if we were part of the European economic area, we may still have a say on some regulatory changes. I understand the point my hon. Friend is making, but my amendment would not tie the UK to every regulatory change that takes place within the European Union; it would simply make sure that Parliament is informed when the European Union branches off and goes in a different direction. We need to know that information so that we can make a choice as laws change. If the EU takes a different route, we may want to consider doing so ourselves. We may not, but we may. That is simply the point I make in new clause 15.

New clause 55, in the name of the right hon. and learned Member for Beaconsfield, and new clause 25, in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), address the issue of retained EU laws. Over 20,000 laws and 12,000 regulations will need to be transposed in some way, shape or form. That is a massive process of change and it is still not clear whether we will convert European laws into primary legislation, secondary legislation or something else entirely. It is sensible to have a schedule that lists retained EU laws and I think the suggestions in the new clauses should be accepted.

It may be that not everything can be changed. If there are modifications via primary legislation, we might want the enhanced scrutiny procedure. When the Minister was pressed on this issue, however, he did not in any way give a proper concession to the points made by Members on both sides of the House. We could face circumstances where the EU laws to be modified affect equal pay, the treatment of workers with disabilities, or race and age discrimination. They were not part of primary or secondary UK legislation, but EU laws that we are going to co-opt. If there is to be a change to the set of rules under which we operate, we need much more clarity on whether it will involve this House of Commons doing it in an affirmative way through an enhanced procedure, or, preferably, through primary legislation.

The Minister needs to do more than just promise to look at this matter on Report, because we may not get a Report stage. We have a Committee of the whole House stage, so unless the Bill is amended there will not be a Report stage. The Minister needs to acknowledge that if we do not have a Report stage, any such assurances are not really worth that much.

[The Solicitor General]

Yes, there will be a Report stage. I can assure the hon. Gentleman of that.

[Mr Leslie]

I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that.

My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU—on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decision”, just will not do.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Joanna Cherry]

Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—

[The Solicitor General (Robert Buckland)]

I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.

--- Later in debate ---

[Tommy Sheppard (Edinburgh East) (SNP)]

I support those amendments that seek to ensure that the charter of fundamental rights is not exempted when we transfer powers from the EU after Brexit. Like many people I expect, I have received a lot of correspondence from constituents, and I wanted to start by reading from one—because time is short I will just read the last section of a letter from one of my constituents, Andrew Connarty:

“I feel that the EU and its legislative and judicial bodies protect me as a citizen and have a process of checks in place to protect my human rights, my legal rights and provide me with security. A lot of conversation in the media covers the rights of EU citizens in the UK who are foreign nationals, but what about the rights of EU citizens in the UK who are British nationals?”

Andrew Connarty is one of the great number of people in this country who are fearful of what is about to happen. For them, the process of leaving the EU is not some great liberation or removal of an alien superstate that oppresses them and over-regulates them. They see this as a loss of something of themselves; they see themselves as being diminished and lessened by this process.

Some on the Government Benches will say, “Well, that view does exist, but it is the view of a small liberal elite”. Indeed, a Member earlier tried to taunt a colleague by suggesting that the vote for remain in her constituency could not possibly have been motivated by concern about the charter of fundamental rights. I accept that the great mass of people are probably completely unaware of what particular rights we are talking about, but that does not mean they are unconcerned about them. Joni Mitchell probably summed it up best with the line,

“you don’t know what you’ve got

‘Till it’s gone.”

The reason is that by their very nature political rights do not put obligations on the rights holder—they do not have to be defended and claimed every day; they put obligations on everyone else. We all have to respect the rights of others. In particular, private corporations and public institutions have to respect the rights of others. It is not until they are changed and that relationship alters that people understand that something has been taken away from them. That is why it is absolutely vital that we educate people about the process now happening.

There was some debate about whether the rights in the charter are substantial at all, about whether they mean very much and about whether they are covered elsewhere in legislation. In 2006, this Parliament established the Equality and Human Rights Commission to advise us on such matters. I have read its briefing—I suspect most have—in which it cites clear examples of articles in the charter that are not replicated in other forms of legislation and states that, if the charter is not transferred or incorporated into British law, these rights will be lost. They include—I will not read them all: article 22 on child labour; article 8 on the right to be forgotten on the internet; article 26 on independence for disabled people; and article 24 on the access of children to both parents. These are rights that we have now that we will not have if the charter does not come over post Brexit.

It is not necessary to lose these rights in order to achieve Brexit. I say to the Brexiteers: I am not one of you but you can have Brexit without losing these rights. It is entirely possible. We do not need to do this, so why are we discussing it at all? The Minister said earlier that it makes no sense to have the charter if we are not a member of the EU, because it refers to the EU, yet the entire canon of European law is being taken over and incorporated into British statute, and this charter goes along with it to give citizens rights in respect of it. It makes total sense, therefore, to bring the charter over in the process of repatriating these powers.

There has been talk that it would be silly to bring the charter over because it would create anomalies and inconsistencies with other parts of the Bill, but the Bill already recognises that there are a million anomalies in the process and makes provisions to deal with them. We wonder, then, what is so special about the charter that it cannot happen there, too. Leaving that to one side, however, the most telling argument, as colleagues have said throughout the last six hours, is surely that it is operational at the minute. Why is our legal system not grinding to a halt under the pressure of these contradictions if they are so great? The truth is they are not so great. It works at the minute, and there is no reason it could not continue to work beyond 2019.

In the absence of a rational argument for the retention of clause 5 and schedule 1, I am compelled to find myself reaching the same conclusion as the right hon. and learned Member for Rushcliffe (Mr Clarke): what is happening here is pure politics. There are those on the other side who will be satisfied by being thrown this bone, and, as the right hon. and learned Gentleman put it himself, the idea of being able to get rid of a provision that includes both the word “Europe” and the word “rights” creates a double salivation, but I do not think that it just about sating those who are so Europhobic that they will get pleasure from this; I think there is something else going on as well.

The hon. Member for Eddisbury (Antoinette Sandbach), who is no longer in the Chamber, said earlier that the Government did not intend to remove or weaken our human rights, and I take that at face value. The Government have certainly not come here and said that that is their intention. In fact, no Members—or almost none—have said today that they want to remove people’s human rights, to weaken protection at work, or to lessen consumer protection laws in this country, although I rather fear that the hon. Member for Gainsborough (Sir Edward Leigh) nearly let the cat out of the bag when he referred to “the wrong people” having rights in the charter.

The hon. Gentleman talked about the repatriation of powers so that he could have “real human rights” in this country. I dread to think what he means by “real human rights”. I find him an honourable fellow and I am sure that he means no malintent, but I know that there are plenty of people in our society and in our community who will take advantage of any roll-back of civil and human rights protection to ensure that our religious and political freedoms are constrained so that they can adhere to theirs. I think we need to be eternally vigilant, and I hope very much that the Government will feel able to think again.

I say this to those in the centre ground of the Tory party: “If you are just trying to keep the good ship together and keep every faction on board, and if you think that by giving this concession on human rights you will shore up the Government’s support, remember that your former leader David Cameron thought he would be able to do that by having a Brexit referendum in the first place, and look how that has worked out.” I sincerely say to them, “Once bitten, twice shy. Please think again.”

[The Solicitor General]

It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House.

The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis—as we are no longer to be members of the European Union—it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought.

It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper—which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.

[Mr Kenneth Clarke]

Before my hon. and learned Friend moves on—very authoritatively, I am sure—to the details of the amendments, may I point out that he has just made an important statement? He said that he had thought about whether retaining the charter of fundamental rights after we had left would add anything to our legal rights in this country beyond what we already have. In the past half hour, we have heard my hon. Friend the Member for Eddisbury (Antoinette Sandbach) describe what she calls the third category of rights, which do not appear anywhere else in our law, and we have just heard the hon. Member for Edinburgh East (Tommy Sheppard) list three or four rights in the charter that are not replicated anywhere else. Which of those rights would the Solicitor General be happy to see abandoned? What is going to happen to the third category of rights? He must explain why he does not think the charter adds anything, given that the main reason people are trying to get rid of it is that it has extended the scope of European-sponsored human rights law in this country.

[The Solicitor General]

As the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab) has mentioned, the Government will, on 5 December, publish their full analysis of the sources of the rights that we have been talking about. I remind my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the underlying principles of EU law from which the charter has been developed will be part of the body of law that we bring down to the UK, and will be able to be relied upon.

[Mr Cox]

Is not the answer to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the rights might not be replicated in our existing law but the protections will be? The fact that a general statement of a right is not replicated verbatim in our law does not mean that those rights are not otherwise protected adequately and fully by our laws.

[The Solicitor General]

I am grateful to my hon. and learned Friend, but I feel as though I am about to become a proxy in a debate between him and my right hon. and learned Friend the Member for Rushcliffe, so I will now develop my point.

[Lady Hermon]

Will the Minister give way?

[The Solicitor General]

If I may, I will move on to amendment 10, which would remove paragraphs 1 to 3 from schedule 1. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) earlier drew the attention of the Committee to these important matters, and I am grateful to him for the constructive way in which he has sought to approach this issue. First, we cannot agree to the removal of paragraph 1 because the effect would be to create huge uncertainty. How would our domestic courts approach the task of assessing challenges to the validity of converted law? That is a job that they have never had before. Who would defend those challenges? What remedies would be available to the courts? How could converted law that was found to be invalid be replaced? The amendment does not deal with any of those vital questions.

Similarly, we cannot accept that paragraph 2 should be removed from the schedule. There is no single definitive list of the general principles. They are discovered and developed by the Court of Justice of the European Union. Paragraph 2 in its current form maximises certainty by specifying a clear cut-off point and stating that a general principle needs to have been recognised by the Court before we exit. Without that, it would be completely unclear which general principles could be used as the basis for a challenge. It is not even clear whether post-exit CJEU jurisprudence could be taken into account, and so whether new principles couldbe discovered after exit. That would be completely inappropriate.

[Mr Grieve]

I would like gently to point out that I did not propose deleting the interpretation provision 5(2). Admittedly, it does not interpret anything because the rest is gone, but it nevertheless made it pretty clear that we were talking about retained EU law and that such law was created prior to the date of our exit.

[The Solicitor General]

I think that my right hon. and learned Friend has answered his own point. Without sub-paragraph (2), paragraph 5(2) becomes rather difficult to apply. I want to get to the nub of his concern, however, which is paragraph 3 of the schedule. We recognise the strength of the views that he and other Members on both sides of the Committee have expressed on this issue, many of whom have spoken this afternoon. We are listening, and we are prepared to look again at this issue to ensure that we are taking an approach that can command the support of the Committee.

Simply removing paragraph 3 in its entirety, however, is not something that we could agree to. It would result in an open-ended right of challenge based on the general principles of EU law, however they are defined, after exit. It would mean that domestic legislation, both secondary and primary, rules of law and executive action could be disapplied or quashed if found to be incompatible with those actions. Currently, the general principles apply when a member state is

“acting within the scope of EU law”,

so after exit the circumstances in which the general principles could be relied upon would not be clear.

Allowing courts to overturn Acts of Parliament, outside the context of EU law, on the basis of incompatibility with these principles would be alien to our legal system and would offend against parliamentary sovereignty.

[Mr Grieve]

My hon. and learned Friend raised the question of scope and when this would apply, but it seems to me that he was answering his own question, because it comes when there is a clash between the law that has been retained and has supremacy and any domestic legislation. It is precisely because the supremacy of the retained EU law is kept that it is necessary also to have the potential for the general principles to have that supremacy as well, because they are essential to the purpose of interpretation of that law.

[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).

[Mr Grieve]

I am most grateful to my hon. and learned Friend, who has made a really important concession at the Dispatch Box, which I much appreciate. It clearly reflects the disquiet that has been shown across the House. I can tell him now that, in the light of that, I will not be pressing my amendment to a vote. However, it is clear from what he has said that although some of the issues that I have raised have been met, I ought to put it on record that it is also clear that the issue about whether this could be used to disapply primary legislation appears to remain an area of potential disagreement between us, which I hope we may be able to iron out. I have to say that it is a strange area of disagreement, given that elsewhere we have precisely the possibility of that happening, by virtue of keeping the supremacy of retained EU law.

[The Solicitor General]

As I have said, I want to ensure that the dialogue that has been opened continues. My right hon. and learned Friend knows that at all times the spirit with which he and other hon. Members have tabled amendments has been entirely understood and respected by those on the Treasury Bench. We have never sought to pillory Members for doing the job of scrutinising legislation. I have been there myself many times and can remember tabling dozens of amendments in order to probe the Government’s intentions in a Bill.

[Mr Kenneth Clarke]

We are making some progress, but I point out that I am the second name on the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and I shall inquire of the Chair between now and the end of the debate whether I have a right to call for a vote on those amendments, which I think I may have. I am extremely glad to hear the Solicitor General say that he will bring forward a Government amendment, because he has vigorously rejected just about every argument that my right hon. and learned Friend has used throughout the debate and has stuck rigidly to the interpretation of the Bill as it stands—with which we started. Will the Government’s amendment at least seek a compromise if it does not move completely towards my right hon. and learned Friend’s arguments? It is no good fobbing us off with more discussion if the amendment will not actually change the policy.

[The Solicitor General]

With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.

[Sir William Cash]

rose—

[Lady Hermon]

rose—

[The Solicitor General]

I will give way to my hon. Friend.

[Sir William Cash]

I hope that the Solicitor General will be good enough to look at the deficiencies in amendment 10. Paragraph 5 of schedule 1 deals with interpretation and therefore also applies to paragraphs 1 to 3. As he quite rightly said before he took the intervention, the matter is being scrutinised. As Chairman of the European Scrutiny Committee, we have it on our agenda, and we are scrutinising all such matters and will continue to do so, because we want to be sure that this House is not overridden by disapplication.

[The Solicitor General]

I am grateful to my hon. Friend. I am always interested in looking at how one particular paragraph of a schedule applies to another, but I am particularly interested in paragraph 3.

[Lady Hermon]

rose—

[The Solicitor General]

I will give way to the hon. Lady, who has been very tenacious. Please forgive me.

[Lady Hermon]

Patience is a virtue, and I am not blessed with an abundance of it, so I am grateful to the Solicitor General for taking my intervention, even if I have been bobbing up and down for ages.

The Solicitor General has made an important concession this evening, and I respect that. When he carries out his promised review of the Bill’s impact on rights and the general principles, may I invite him to look carefully at the impact on the Good Friday agreement? The Bill is being used in a divisive manner at home in Northern Ireland, where it is being exploited by those who wish to do so, so it would be enormously helpful if the Solicitor General could reassure us that the Bill will not have a negative impact on the Good Friday agreement.

[The Solicitor General]

I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.

[Joanna Cherry]

Will the Solicitor General give way?

[The Solicitor General]

I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.

[Paul Blomfield]

Will the Solicitor General give way?

[The Solicitor General]

If the intervention relates to the point I was making, I will give way.

[Paul Blomfield]

I thank the Solicitor General for giving way. It is important that the House has clarity on the content of the memorandum he proposes to publish on 5 December. He has said that the memorandum will seek to identify the sources of each right contained within the charter. He has heard in today’s debate that there is concern on both sides of the House that he will not be able to identify the sources of every single one of those rights, and a number of instances have been cited. Will he also undertake that, where there are gaps, his review will outline what action the Government are preparing to take to fill those gaps so that, at the point of exit, we retain all the existing rights?

[The Solicitor General]

I make it clear that, in the words of both the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton, today and, previously, the Secretary of State for Exiting the European Union, we are seeking to publish such details. If there are any further concerns, we can have a continuing dialogue to ensure that the information is in a comprehensive form that seeks to address the issues raised today and elsewhere. The publication on 5 December will therefore be a meaningful event that assists everybody in greater understanding and assists greater progress on getting this process right.

On the question of general principles, I emphasise that there are good reasons to say why it would not be appropriate to incorporate the constitutional and administrative principles of the EU as free-standing principles in our law by inserting a specific right of action, or to incorporate the remedy of striking down domestic legislation based on incompatibility with EU law principles, when we are no longer a member of that institution. First, some of these principles will, indeed, cease to make sense when we have left, except for the purpose of interpreting retained EU law, whereas other principles are already, and will continue to be, reflected elsewhere in our domestic law anyway.

[Mr Grieve]

Has not the Solicitor General, again, just answered his own question? I appreciate that some of the general principles will evaporate because they cease to be relevant, but those that are relevant to the interpretation of retained EU law must still be relevant because they will be used as a tool and aid to interpretation. In those circumstances, why should an individual or a business be deprived of raising them as arguments for saying that, in fact, this law is supposed to be supreme, and therefore able to overcome our own domestic legislation, and ask why the general principles cannot be used to have that bit of offending domestic legislation set aside? I just do not understand the rationale.

[The Solicitor General]

The rationale is quite straightforward in the sense that, in seeking to achieve maximum certainty, there is danger in allowing the system to create a situation in which the law might rapidly degrade in a way that does not achieve such stability and certainty. I accept it is almost reverse logic, but there is logic in trying to make sure that we have an identifiable and pretty understandable body of retained EU law.

I give the example of the EU principle of good administration, which will not have any relevance to our UK law after exit because, of course, the bodies vested in EU agencies will be returned here and all the normal domestic rules about the exercise of such powers by public bodies will apply. Another example is the principle of subsidiarity, which does not make sense outside the concept of EU membership.

Secondly, the Bill will, of course, take a snapshot of the law as it stands at the moment we leave. Retaining a right of action based on general principles of EU law, which will of course change in the future, would lead to uncertainty for businesses and individuals about their rights and obligations if we end up in a situation where pre-exit legislation could be struck down, or where administrative decisions could be challenged, on the basis of those principles.

In other words, that is an echo of what I was just saying to my right hon. and learned Friend. This is particularly the case given the uncertainty about the way in which principles could develop or about the circumstances in which they would apply after exit. It would make no sense to bind ourselves to such an imprecise, open-ended and uncertain set of principles—it does not mitigate legal uncertainty, but increases it. It makes no sense, once we are no longer an EU member state, to bind ourselves to a set of principles that are the EU’s judge-made constitutional principles, when we have our own constitutional and common-law principles. Such an approach risks duplication and confusion.

Perhaps more fundamentally, outside the context of EU law, the ability for courts to disapply primary legislation is just inconsistent with the way our constitution works and the balance of powers that has to exist between the legislative and judicial branches.

[Vicky Ford]

I thank the Solicitor General for saying that he is going to look seriously at these points during the Committee stage. The point of bringing EU law into the UK law is to give certainty. Each of those European regulations has strict articles—the letter of the law—and the recitals, which give guidance as to how it is to be interpreted and implemented. Will he assure me that he will seek to ensure that our judges will look at not only the articles, but the recitals—the principles behind it?

[The Solicitor General]

I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.

[Joanna Cherry]

I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister’s spokesperson that the Government expect the ECJ’s role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?

[The Solicitor General]

The hon. and learned Lady has a keen memory and she will not have forgotten the Government’s commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period— call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period.

I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands.

I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.

[Anna Soubry]

rose—

--- Later in debate ---

[The Solicitor General]

I am sorry but I must press on.

The first point to make on the amendments is that whereas some of the general principles are now set out expressly in the EU treaties, the general principles were first recognised by the European Court of Justice. They were and are judge-made law, and all the principles ultimately have a basis in case law.

We debated the inclusion of article 191 of the Lisbon treaty on the functioning of the European Union at length on day two of Committee, so I will not repeat those arguments here. That said, though, I wish to re-state that the inclusion of article 191 would risk going further than the existing principles that are set out in EU and UK law today. The requirements that the amendments set out do not exist today in either EU or domestic law. If the amendments were made, they would require the courts to interpret all legislation compatibly with the environmental principles. Given that the Bill’s purpose is to bring into effect the law that we have currently, the amendments regrettably risk generating a measure of uncertainty and a degree of confusion about the legal position.

[Anna Soubry]

May I return to clause 5(1)? It 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.”

Will the Solicitor General please look at that in light of the Government’s excellent determination that we will still effectively be subject to the ECJ during the beginning of the transition period, because if that is to be the case, it is not consistent with clause 5(1)?

[The Solicitor General]

I know that my right hon. Friend listens carefully to everything I say, and I am sure she would agree, first, that the transition period rightly has to be the subject of separate legislation—the Bill on the withdrawal agreement that will come before the House in due course—and secondly, that we have to cater in this Bill for as high a degree of certainty as possible for that legal exit date. That certainty is an important first step before we get into the question of transition—that interim period that I accept needs to be underpinned by primary legislation passed by this House, but which is a separate and distinct stage. I do not think there is any contradiction between the position that we want to take in a transition period—subject, of course, to the negotiation—and the clear position that we want to take in the Bill.

Before that intervention, I was dealing with amendments 101 and 336. Amendment 336 goes further, in that it would give a right of action based on a failure to comply with the environmental principles, and legislation would be at risk of being struck down by the courts if it was not compatible with them. I hope that Members were reassured and encouraged by the announcement by my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs on 12 November of our intention to create a new comprehensive policy statement setting out the environmental principles. That statement will draw on the EU’s current principles and will of course underpin future policy making.

The Bill takes the right approach by retaining the principles as they have been recognised by the European Court, thereby providing the greatest possible clarity and certainty. Amendment 336 would alter the approach to the taking of that snapshot of EU law as it applies immediately before exit day. It effectively prejudges the outcome of the negotiations and introduces inflexibility, by seeking to bind us to decisions made by the European Court on general principles for the full duration of any implementation period. That pre-empts and prejudices the outcome of the negotiations. On that basis, I urge right hon. and hon. Members not to press their amendments.

Paragraph 4 of schedule 1 removes the right to what are commonly referred to as Francovich damages from our domestic law after exit. That form of damages is a specific EU-law remedy that arises only in certain limited circumstances when an EU member state, or an arm of that state, has committed a “sufficiently serious” breach of its EU law obligations and there is a direct causal link between the breach and the damage. This is not a wide-ranging general right to sue the Government; rather, it is inextricably linked to and constrained by EU membership. Nor, as some have suggested, is this an everyday course of action for the average citizen. The number of actual Francovich cases heard by UK courts over the past 26 years is relatively low. Estimates vary, but studies suggest that, in the 20 years following the decision in Francovich, there had only been between 22 and 25 cases.

--- Later in debate ---

[Mr Grieve]

Will my hon. and learned Friend give way?

[The Solicitor General]

No, I will not give way, as I need to develop my point.

For example, in 2015, in their legal challenges to the domestic legislation standardising the packaging of tobacco products, the tobacco companies reserved their right to claim Francovich damages should they succeed on the substance of their claims against the Government. I make this point because any suggestion that removing the Francovich procedure reduces access to justice for the average citizen is not reflected in the UK experience.

[Mr Grieve]

I am very grateful to my hon. and learned Friend. I understand everything that he is saying. He knows what I have said about Francovich damages and their disappearance being inevitable, but the point about the transition is key. I have to say to him that it is not a comfortable argument for a Law Officer of the Crown to make to suggest that just one person, or one business, being deprived of a legal right is an acceptable circumstance, because it plainly is not.

[The Solicitor General]

I did not say that. If that was the impression that was created, I am afraid that my right hon. and learned Friend is mistaken. What I am talking about is trying to balance out and put into context the use of this particular procedure, which needs to be done because we have not heard the other side of the argument. That is what I am seeking to do.

By contrast, all existing domestic law routes of challenge and remedies for breaches of retained EU law will remain undisturbed. For example, this provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law—such as under the Public Contracts Regulations 2015—or the case law which applies to the interpretation of any such provisions. Nor does it affect the right to challenge the decisions of public bodies by way of judicial review. Claimants will also still be able to seek remedies through the law of tort, by establishing negligence or by a breach of statutory duty, and they will also still be able to make a claim for restitution for unlawfully levied tax or charges.

The existing right to Francovich damages is linked to EU membership and the obligations that we have as a member state to the EU at an international level. There is clearly a difference between substantive EU law, which is being kept by the Bill to prevent legal uncertainty, and the supranational procedural rules, principles and frameworks that will no longer be appropriate once we have left the EU.

Let me turn briefly to amendments 139 and 302, which take a slightly different approach. They would maintain the right to Francovich damages in domestic law, but only in relation to pre-exit causes of action. Amendment 335 would similarly maintain the right to Francovich damages in domestic law for causes of action occurring during any transitional period. The Bill sets out elsewhere—at paragraph 27 of schedule 8—that the exclusion of the right to Francovich damages would apply only in relation to claims that are brought after exit day.

I would like to assure my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), and indeed all Members, that we will consider further whether any additional specific and more detailed transitional arrangements should be set out in regulations.

[Mr Grieve]

I am delighted to hear the Solicitor General say that. As he will appreciate, the point is a very simple one: it must be the case that the damages are available if the action takes place before exit day. It is a very basic principle of law and quite easy to correct.

[The Solicitor General]

Perhaps I can forgive my right hon. and learned Friend his eagerness to hear the remarks that I was going to make. I am sure that when this debate finishes he and I will continue the dialogue that we have had for some time about these matters.

It would not be right to maintain, in general, such an open-ended right to this form of damages after exit for any and all potential pre-exit causes of action. I am concerned that we would end up with an almost indefinite trail of cases. That is not good for certainty, and it is not good for the transition we want to make.

[Richard Graham (Gloucester) (Con)]

Before the Solicitor General finishes his remarks, may I say, as a non-lawyer listening to what has largely been a debate between distinguished legal minds on both sides of the House, that two things strike me as important? The first is that this debate has really been about legislative quality control, rather than political Punch and Judy, and that should be very reassuring for anybody watching this debate. The second is that the tone with which my hon. and learned Friend and his colleagues have engaged with colleagues on both sides of the House to find a way through and to make the best law sends a fantastically powerful message. Will he guarantee to continue working in this spirit to take the Bill forward?

--- Later in debate ---

[The Solicitor General]

I am very grateful to my hon. Friend for making that observation. [Interruption.] I can assure Opposition Members that I have listened carefully to the submissions and observations by Members on both sides of the House, in the true spirit of Committee.

[Mrs Cheryl Gillan (Chesham and Amersham) (Con)]

I am most grateful to my hon. and learned Friend for giving way, because, unfortunately, I was not able to be in the Chamber for a large part of the debate, as I was chairing a Bill Committee. I thank him for taking into consideration the points I raised on behalf of my constituent concerning Francovich. I hope that what he is a saying from the Dispatch Box will go a long way towards providing the comfort and certainty my constituent requires. May I thank those on the Front Bench for listening to the points I made in the debate the other day? I hope this will move us towards a successful conclusion in the case of my constituent.

[The Solicitor General]

I am extremely grateful to my right hon. Friend.

For the reasons I have outlined, I would, with the greatest of respect, and in the spirit of comradeship almost, urge hon. and right hon. Members not to press their amendments.

In summation, we have listened and we will continue to reflect carefully on all the arguments that have been made today. The Government believe that the approach we are taking is the right one as we carefully separate our legal system from that of the EU and restore democratic control to this Parliament. I commend schedule 1 to the Committee.

[Darren Jones]

I rise to speak in support of amendments 8, 46 and 79, the excellent amendments 101 and 105 from my hon. Friend the Member for Bristol East (Kerry McCarthy), amendment 151 and, given the list rattled off by my hon. Friend the Member for Sheffield Central (Paul Blomfield), a whole lot more as well.

While I have enjoyed the opportunity today to intervene on the legal debates the hon. Member for Gloucester (Richard Graham) pointed to, it is also important, as we come towards the end of today’s debate, to think about general principles—to take a step back and to think about the politics of what we are debating today, as opposed to just the legal issues, which I may touch on briefly.

The EU charter of fundamental rights is exactly what it says on the tin: it is a statement of fundamental principles—an anchor—with which European legislation must comply. It protects the grounding of what we deem to be acceptable in our democracy. Legislative details are, of course, for debate, but we must anchor them to those fundamental rights because, as we have heard today, failure to do that can lead to actions in the courts and the awarding of damages.

The Minister of State, Ministry of Justice, who is not in his place, said from the Dispatch Box earlier that the EU charter has no standing and therefore means nothing, but I respectfully disagree. When my constituents have the right to bring actions in the courts, and in certain circumstances to receive damages, that has value—that means something to citizens. Those are fundamental, enforceable rights, which we should be proud of.

It is right to say, of course, that the UK need only respect these rights when implementing EU law, but, as we know too well, and as we will learn over the coming weeks and months, the tsunami of EU law that we seek to copy and paste into UK law comes with principles we must protect.

My earlier intervention provides one example of why the Government’s policy is nonsensical. The fact that we are bringing ECJ case law into UK Supreme Court case law under the Bill means that the case law around the charter of fundamental rights will be in the case law of this country, yet we are not willing to bring the charter with it. That cannot make sense unless the Government are saying that they wish to pick the cases out of ECJ jurisprudence when they give them UK Supreme Court status.

My right hon. Friend the Member for East Ham (Stephen Timms) raised very powerfully the issue of adequacy and equivalence in relation to the Data Protection Bill. The Government may find it politically uncomfortable to recognise the obvious fact that on financial services, data protection and other issues where we seek to maintain equivalence in the European market, we must track and embed EU jurisprudence in order to do so. In the context of the general data protection regulation and the Data Protection Bill, that means respecting the fundamental right that one’s data is protected under the EU charter.

In the absence of those on the Treasury Bench saying to me and to the Committee which of these rights they so vehemently disagree with, I am left to draw the conclusion, in common with the Father of the House, that the only thing the Government seem to be unhappy with about the charter of fundamental rights is that is preceded by the letters E and U. Yet my constituents will suffer losses in rights and losses in their ability to enforce those rights. This is not a question of ideological Brexit party politics but of fundamental rights that are enforceable by my constituents and the citizens of this country. We cannot play politics with these issues. If we fail to keep the charter of fundamental rights, we fail to ensure that the laws brought in under this Bill are anchored to the fundamental principles on which they are drafted. As we have heard, that leaves judges to interpret the rights of citizens in the direction of the winds of the day without the statutory anchor that holds them true to their underlying principles.

Having touched on legal issues, I will move on to the general principles. If we lift our heads out of the bucket of sand that is Brexit and look around us, we must ask what repealing the charter of fundamental rights says about the type of country we are and wish to be. One of the outcomes of this Brexit process is that with the removal of the charter we have failed to set out a vision of an acceptable basis for a developed, modern democracy like Britain. That is why I support the amendments. I sense that we have lost our way, because removing these fundamental rights says something about who we are and how we should conduct business as a country. The pride that all of us share in what it means to be British and our influence in the world is based on the standards that we set at home and abroad. The purpose of having the EU charter of fundamental rights is to make a statement of the standards that we should be proud of as a developed, modern democracy. I, for one, want to continue to be proud of my country.

Speaking as a desperate remoaner, and a proud one, I have to say loud and clear that the direction of travel that we are seeing through this mess of a negotiation on Brexit, and the fact that we are debating something as nonsensical as removing the EU charter when it causes us no problems and we are bringing ECJ case law into the case law of the UK anyway, shows that we do not know what type of country we want to deliver for our citizens. In the context of losing thousands of jobs from agencies relocating and, for the first time ever, losing our seat on the UN International Court of Justice, I am filled with desperation about what type of country we are seeking to deliver.

I do not see from this Government a vision of what Britain looks like in future, and removing these fundamental rights goes to the heart of that. I want my constituents and the citizens of this country, and citizens around the world, to look to Britain to see that we protect and recognise these fundamental rights—rights that we should be proud of. I think that as Brexit continues to unfold and my constituents, and others, continue to see the losses they are suffering as a consequence of the referendum —the loss of access to the single market, the loss of access to the customs union, and today the loss of rights that are currently protected in law—they deserve the right to change their mind.

I say once again to Government Members on the Treasury Bench, who are no doubt listening intently to my comments—[Laughter.] Thank you. I say to them that this is clearly a question of politics, rather than of law, as we have heard today. I plead with them to put the ideological Brexit party politics to one side, bring sense to the Dispatch Box and protect the enforceable rights of my constituents and the citizens of this country, as proudly set out in the EU charter of fundamental rights.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Mr Grieve]

I am entirely supportive of the intention behind this amendment, but being too much of a lawyer, I probably did not sign it because I realised the potential implications—

[The Solicitor General (Robert Buckland)]

indicated assent.

[Mr Grieve]

I see the Solicitor General nodding. However, the fact that it might have legal implications does not mean that it is not a very desirable objective.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Joanna Cherry]

The point I am seeking to make is that having vigorously resisted my amendment, which I tabled for the benefit of everybody living in the UK in relation to issues of certainty about the interpretation of retained EU law after exit day, the Government have now conceded some ground—they are going to provide that certainty for EU citizens living in the UK—so why, if it is good enough for EU citizens living in the UK, is it not good enough for UK citizens living in the UK? Perhaps even more importantly—this adds force to my argument—senior members of the judiciary, both current and retired, have very serious concerns that the wording in the Bill as it stands will involve them in having to make political decisions.

In the past few days, we have seen the kind of vicious opprobrium that can be levelled at those who are seen to have made political decisions on the constitution where the EU is concerned, and earlier this year we saw the level of opprobrium directed at senior members of the judiciary for applying the law. The judiciary’s concern, therefore, is very real. I am not here just to advocate for the judiciary; I am here to advocate for democracy, the separation of powers, and the protection of the constitution. I may well have, as my ultimate goal, an independent Scotland with its own written constitution, but as long as Scotland remains part of the United Kingdom I am very interested in preserving UK citizens’ rights and democracy in the UK as a whole and protecting the notion of separation of powers within the constitution.

The Government do not have to take my word for it. They should look very closely at the evidence given to the House of Lords EU Justice Sub-Committee on 21 November. Lord Hope of Craighead pointed out that clause 6(2), as presently drafted, gives them a discretionary freedom rather than an obligation. Lord Neuberger, the former President of the Supreme Court, said:

“Clause 6(2), as drafted—it is a matter for a judge whether, and if so in what way, to take into account a decision of the Court of Justice on the same point in the regulation or directive, rather than in our statute. The problem for a judge is whether to take into account diplomatic, political or economic factors when deciding whether to follow the decision of the CJEU. These are normally decisions for the legislature, either to make or to tell judges what to do. We talked about our system in this country of judges being given a wide discretion, but this is an uncomfortably wide discretion, because a judge will have to take into account, or in some cases will be asked to take into account, factors that are rather unusual for a judge to have to take into account and that have political implications. It would be better if we did not maintain this system of judges being free to take decisions into account if they saw fit, if they were given some guidance as to the factors which they can and cannot take into account. Otherwise we are getting judges to step into the political arena.”

The issue of how the judiciary are to be given guidance on the interpretation of retained EU law arises directly from the wording of schedule 5 and takes us back to the wording of clause 6(2).

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Joanna Cherry]

The Solicitor General is raising his eyebrows at me, but if he looks carefully at schedule 5, as I am sure he has, he will see that it talks about the procedure for interpreting retained EU law. That is why I am revisiting these issues. I am also revisiting them because former Supreme Court judges Lord Neuberger and Lord Hope gave this evidence to the House of Lords after our discussions on clause 6(2) in this House. It is new evidence that the Government really should take away and look at before Report.

--- Later in debate ---

[Joanna Cherry]

I am very grateful to the right hon. and learned Member for Beaconsfield for agreeing with me on this point. I would expect him to do so, because he, like me, will be paying very careful regard to what current senior judges and retired judges are saying.

I would like to conclude by quoting what Lord Thomas said to the House of Lords Committee after Lord Neuberger and Lord Hope had given their evidence. He said that he entirely agreed:

“It will be a very real problem for future judicial independence and the rule of law if this”—

the guidance—

“is not clarified.”

Put briefly, the problem is that leaving domestic courts free to make independent judgments on such crucial constitutional issues raises the prospect of politicising the judiciary’s institutional role in the Brexit process, resulting, potentially, in further regrettable attacks on the integrity of UK judges like those we saw earlier this year and last week. I therefore ask the Minister to address this problem before Report. I have no doubt that it will be addressed in the House of Lords, but I think it should be addressed in the elected House. The elected House should sort this out and not leave it to their lordships.

[The Solicitor General]

Given the spirit in which the hon. Member for Nottingham East (Mr Leslie) moved new clause 21, I was anticipating some form of Christmas truce, and that we would perhaps emerge from our trench lines and play football. As the debate went on, however—this is inevitable on such issues—divisions soon emerged. We have had quite a fierce debate on aspects of the policy surrounding our exit from the EU. First, there was the question of when an impact assessment is not an impact assessment. We then—I am not criticising the hon. and learned Member for Edinburgh South West (Joanna Cherry)—started down the road of, in effect, reopening the debate on clause 6(2). I did raise my eyebrows at her. I take the point that there is a link with schedule 5, but she will immediately recognise that the schedule tries to answer the old question of whether the recognition or understanding of EU law for the purposes of judicial interpretation is a question of fact or a question of law. It is a mechanism to an end, rather than the means of interpretation itself, which is of course within clause 6.

[Joanna Cherry]

My point is that, having rightly conceded that it is a question of law, the Government need to address how that law is interpreted by the judiciary.

[The Solicitor General]

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

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

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

[Lady Hermon]

Will the Solicitor General take a moment to explain the status of the long preambles to EU regulations and directives? We are taking all this back, so what is their status to be? How will the courts interpret the preambles to regulations and directives that become part of retained EU law?

[The Solicitor General]

Like any other part of a document, it will, of course, have effect. A preamble is an important statement. It is different from, say, an explanatory note or accompanying document—it is part of the measure and therefore will have force. We are seeking to download that documentation and make it part of our domestic law so that when we read it across, people will know that it is part of our domestic law, albeit in that category of retained EU law.

[Lady Hermon]

The hon. and learned Gentleman, like everyone in the House, will be well aware that our legislation does not have long preambles. I think that the judges need further guidance. He has indicated from the Dispatch Box that the preambles will have force. What weight should the judiciary across the UK give to those preambles, as they are not accustomed to them in British legislation? What does “force” actually mean?

--- Later in debate ---

[The Solicitor General]

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

[Joanna Cherry]

That was not just my concern. It was a concern expressed by the Law Society of Scotland which, as I have said, informed the SNP amendments. May I take up a point made by the right hon. and learned Member for Beaconsfield (Mr Grieve)? These are extremely sweeping powers, but they are tucked away in a schedule.

[The Solicitor General]

I take the hon. and learned Lady’s point with the utmost seriousness, as I hope I always do, but, with respect to her, I think there is no real significance to be attached to the fact that the provision is in a schedule. This is hardly the longest piece of legislation that the House will have seen, but it will certainly be one of the most pored over—and rightly so. The hon. and learned Lady is doing justice to that through her interventions.

Let me now deal directly with new clause 21. Of course I recognise the concerns raised by the hon. Member for Nottingham East, but I do not consider it feasible to impose a statutory duty requiring summaries of all retained direct EU legislation. The scale of that task would be hard to overstate. I have used the word Sisyphean before, and I think that it applies in this case.

According to EUR-Lex, the EU’s legal database, there are currently more than 12,000 EU regulations in force. To impose a statutory duty of requiring plain English summaries of them would, I think, be disproportionate, given that many explanatory materials have already been issued by the EU about EU law—and, indeed, by UK bodies, including the Health and Safety Executive. One example is documentation on the registration, evaluation, authorisation and restriction of chemicals regulations published by the European Chemicals Agency. That measure has been mentioned many times in the Committee. I believe that, at present, the law is accessible.

--- Later in debate ---

[Mr Leslie]

I am grateful to the Solicitor General for addressing new clause 21 in that way, which will be useful to the poor members of the committee that has been given the task of sifting what should and should not be negative statutory instruments. The commitment to provide explanatory memorandums that are readily understandable is very helpful. Dealing with perhaps 12,000 regulations is, of course, a massive task, but does the Solicitor General not agree that that might be one of the unforeseen consequences of Brexit?

[The Solicitor General]

I think that there are many consequences on which the hon. Gentleman and I could dwell on another occasion. The fact is, however, that it is my task to try to ensure, as one of the Law Officers, that the principles of the rule of law to which my right hon. and learned Friend the Member for Beaconsfield referred in his speech—accessibility, clarity and certainty—are adhered to. We will deal with the issues so that we uphold those important principles, which were set out by the late Lord Bingham.

[Lady Hermon]

I am grateful to the Solicitor General for his generosity in giving way again. As he knows, we do not currently have a functioning Assembly in Northern Ireland, so we do not have Ministers who can abide by his direction about explanatory memorandums that will be issued when EU regulations and directives are brought back, in this context to Northern Ireland. Will he confirm that the Departments in Northern Ireland will have an obligation—a duty—to provide explanatory memorandums in that connection?

[The Solicitor General]

I think it must follow that when there is no Executive functioning in Northern Ireland and the Northern Ireland Office is carrying out functions as a substitute for the Executive, the duty will apply to that Department. I assure the hon. Lady that when we introduce statutory instruments, there will be explanatory memorandums from one source or another. Various Departments will have different responsibilities for the drafting and publication of the statutory instruments, and it will be their duty to produce the explanatory memorandums for Members to consider. I cannot envisage an exception being made. Northern Ireland will be covered in the way in which the hon. Lady wants it to be.

Paragraph 1(4) of schedule 5 enables the Queen’s printer to make arrangements to publish documents that may be considered useful in connection with anything else published under the schedule. That, I think, allows for the approach that the hon. Member for Nottingham East is requesting. We are committed to ensuring that the law remains accessible and comprehensible after exit day, and on that basis, I ask the hon. Gentleman to withdraw the new clause, which I think he said was a probing measure. He will have noted my comment, and I understand his position.

Amendments 76 and 77 have been addressed in particular by the hon. and learned Member for Edinburgh South West. Amendment 77 seeks to place the power for a Minister to make provision about judicial notice and the admissibility in legal proceedings of specified evidence of certain matters into the Bill. Judicial notice is a term that covers matters that are to be treated as already within the knowledge of the court, and are therefore not required to be “proved”, as other evidence would be, in the usual way. Amendment 76 would remove that power from schedule 5, while not replacing the provisions that clarify the scope of that power.

The power in part 2 of the schedule covers a limited, technical area, and the affirmative procedure will apply. My worry is that, with the removals that amendment 76 would make, we will lose clarity on how those powers are to be applied. I imagine that the intention of those who support the amendments is that those clarifying provisions would be inserted underneath the power, but I think that we achieve greater clarity by putting them in this schedule in the way that we have, so I respectfully ask the hon. and learned Lady and the other Members who have tabled the amendments not to press them.

Finally, I will deal with amendment 348. It is tempting for me to plunge into the debate about impact assessments and regulatory and sectoral analyses, but this is an amendment about this Bill, of course, and I remind all Members that an impact assessment for this Bill was published when it was introduced. That is in line with the general practice of Governments of different parties in recent years of publishing impact assessments alongside legislation. We want to continue pursuing that approach, but it must be done in a proportionate and appropriate way.

Amendment 348 would impose an open-ended requirement on the Queen’s printer to publish impact assessments, and could, I fear, create a duty it could not meet. The Queen’s printer does not have a responsibility to decide what should be published alongside legislation; it merely publishes what the Government ask it to, and quite rightly so, we might think. At the same time, Ministers have a specific responsibility, endorsed by Parliament, not to release information that would expose our negotiating position. This amendment would risk doing precisely that in a way that would put the responsibility on to a non-ministerial department—the Queen’s printer—which, with respect to it, is in no place to know what analysis is being undertaken, or to make a judgment about what can be published appropriately, safely and proportionately.

In the context of those remarks, I ask the hon. Member for Nottingham East to withdraw the new clause, and I support the passage of clause 13 and schedule 5 and beg that they stand part of the Bill.

[Mrs Moon]

I rise to speak in support of amendment 348 and new clause 21.

Today, I took the short and wide pavements over to the Department for Exiting the European Union; what a waste of my time that was. I went because I wanted to read what was written in relation to the workforce impacts for the large numbers of my constituents from Bridgend who work in the Ford engine factory and with Tata Steel. So I went to look in particular at the automotive sector and the steel sector reports.

The Ford engine plant is the largest engine works in Europe, and Tata next door in Port Talbot employs the largest number of people in steelworks in the UK. It was interesting that when I got there—having gone through the whole palaver of not taking my phone with me and being walked up to the Department, being asked to sign myself in and being handed the two big files—I found that the document started off by telling me what it was not: the first page I had to wade through told me that 58 sectorial impact assessments do not exist. So what I had gone there to see did not exist. Instead I was told that the paperwork consisted of qualitative and quantitative analyses in a range of documents developed at different times since—that is an important word—the referendum, so this was going to be new information: it was going to be information and analysis not available before the referendum and therefore, sadly, not available to the voters in my constituency or indeed to Members.

The 38—not 58—sector documents consist of descriptions of the sector, comments on EU regulations, existing frameworks for how trade is facilitated between countries and sector views. In the end, they are sector views, and nothing the Government had collected together was worth going there to read. They did not contain commercial, market or negotiation-sensitive information, as the documents told me, so why on earth could it all not just have been emailed to all MPs? There was nothing there that would upset anybody; all it would have done was insult people, not worry them. Apart from the sector views, it told us nothing that could not be found from a good read through Wikipedia.

There is no Government impact assessment, or indeed any assessment, even in the one part of the document worth reading: the sectoral view. The sectoral view is just there: the Government do not say what they are going to do about it, or even whether they think it is relevant—they just ignore it.

Sir David, what I was greeted with at DExEU would, in all honesty, have insulted us when we were both serving on the Select Committee on Defence; if that had come to us from the Ministry of Defence, we would have sent it back and said, “Do it again.” It was insulting. Members of the NATO Parliamentary Assembly would have been confused by such pathetic information being placed before them. So perhaps that is why we are not making it public.

I read the report relating to the automotive and steel industries. The report admits that automotive is central to the UK economy and a key part of our industrial strategy, so we would think that the Government would want to make sure that whatever they were going to do would protect it. The industry employs 159,000 people, with a further 238,000 in the supply chain. I did like one line, which said that the UK is a global centre of excellence for engine design, and offered the example of Ford; that is us down in Bridgend. Automotive earns us £40.1 billion in exports, and the EU is the UK’s largest export market, so we would think this is pretty important stuff.

What were the sectoral view and the concerns? Again, there was nothing new; my hon. Friend the Member for Ogmore (Chris Elmore) and I could have written this ourselves. In fact, we could probably have written a better sectoral analysis than anything the Government have produced; it was pathetic.

European Union (Withdrawal) Bill

Robert Buckland Excerpts

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

[Paul Blomfield]

I will seek to live up to that expectation, Mr Speaker; I do not intend to speak for long.

Amendment 4 addresses one of the six key tests that we set out for the Bill before we could support it. Those tests were not set out simply on Second Reading or in Committee, but 10 months ago, when the White Paper outlining the Government’s approach was first published.

The tests drew support across the House, but sadly the Government have made no significant concessions. In Committee, a meaningful vote for Parliament on the final deal was secured, of course—but against the wishes of the Government and only by decision of the House. Our five amendments at this stage address those other tests: facilitating a transitional period; protecting the devolution settlement; protecting workers’ rights; reining in the Henry VIII powers; and, in amendment 4, retaining the EU charter of fundamental rights in UK law.

The objective of amendment 4, which would retain charter rights in UK law and afford them the same level of protection as those in the Human Rights Act, has wide support on both sides of the House. It is part of a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice jobs and the economy or rights and protections on the altar of ideology. It is a sensible approach for which I believe there is a majority across the House—one that goes well beyond those who voted for amendment 7 in Committee. It is also a consensus that I think is reflected in the other place, from which I suspect we might see the Bill return with some improvements, as the right hon. and learned Member for Beaconsfield indicated.

The Opposition support amendments 42 and 43, which would enable UK courts to continue to refer matters to the Court of Justice and to consider CJEU decision to be persuasive. As well as amendment 55, we also support new clause 13, amendments 40 and 41, on clarifying the status of retained law, and new clause 16 on enshrining equality rights, which stands in the name of my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous). We also support new clause 7 on animal sentience and new clause 9 on the acquired rights of Anguillans—an indication of the enormous complexity and range of the issues we face with Brexit. We accept that Government amendments 37 and 38 improve the Bill, but we fear that they do not go anywhere near far enough on legal challenges based on the general principles of EU law, which is why we prefer and support amendment 57, which was moved so ably by my hon. Friend the Member for Bristol East (Kerry McCarthy).

Amendment 4 addresses the concerns we raised in Committee around the charter of fundamental rights and provides an opportunity for the Government to think again. Human rights should not be a dividing line between parties in this House, so even at this stage we hope that the Government, either here or in the Lords, might accept our approach in the amendment and perhaps even accept the amendment today and avoid the vote that we will otherwise be seeking. As we said in Committee, the charter has been critical in developing, strengthening and modernising human rights in the UK. To abandon it risks reducing protections for UK citizens and leaving a gaping hole in our statute book.

The Government claim that the Bill is about legal continuity and certainty in what will become the new category of EU retained law, but all of that EU law is interpreted through the charter, so excluding it would leave our legal system inconsistent and incoherent. To avoid defeat on this issue in Committee the former Justice Minister, the hon. Member for Esher and Walton (Dominic Raab), committed to publishing a memorandum that he claimed would confirm the Government’s case that the charter was unnecessary by identifying where all of these rights could be found in EU retained law or existing domestic law.

Obviously that argument overlooked the main point of the charter, which was to bring all of these rights together in one codifying document, but as an Opposition we were willing to be helpful and awaited the memorandum with interest. We wanted to see a comprehensive document that identified not only the source of each right in the charter but—crucially—how the existing level of effective recourse would be guaranteed. The memorandum was published on 5 December, and it acknowledged that the Government envisaged all these rights being scattered back to their original sources. They are removing the material source of the rights, in the form of the charter, and leaving citizens with the formal source. Now that is a legal way of describing the problem, but I am not a lawyer. It means in effect that it will become more difficult for any UK citizen to assert their rights post-Brexit.

In their defence, the Government insisted that nothing would be lost if we dropped the charter because it created no new rights.

[The Solicitor General (Robert Buckland)]

indicated assent.

[Paul Blomfield]

I see the Solicitor General nodding. On this crucial issue, however, the Government’s cover has been blown. For this, I would like to thank the new Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham (Suella Fernandes) —I am sorry she is not in her place today—because in an article in The Daily Telegraph on 18 November last year she made our case clearly. She expressed her concern about the charter precisely because it provided new rights. She wrote that it went beyond the European convention on human rights by creating “extra layers of rights”, and she went on to bemoan the fact that these extra rights covered

“everything from biomedicine and eugenics to personal data and collective bargaining”.

I appreciate that her thinking on this will probably be in line with that of her new boss, the Secretary of State for Exiting the European Union, because he relied of course on the extra rights provided by the charter when he brought his own court case against the now Prime Minister asserting his right to personal data.

--- Later in debate ---

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

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

[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.

[Vicky Ford]

Will my hon. and learned Friend give way?

[The Solicitor General]

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

[Mr Grieve]

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

[The Solicitor General]

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

[Mr Kenneth Clarke]

My hon. and learned Friend kindly said that he would try to answer my question. The question was: what harm has the charter of fundamental rights done and what evil is he trying to avert? It is true that, unexpectedly, new rights have been created under the charter and he is right that those rights have relevance to EU law. But the whole point of the Bill is to retain large amounts of EU law and its principles. What is the point of the change? This is policy in this Bill—it is a policy change. I fear that it is a signal to some sections of my party: the only part of the acquis communautaire that will be abolished mentions the wicked words “fundamental rights”, and that is why it is being removed.

[The Solicitor General]

The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.

[Sir William Cash (Stone) (Con)]

I entirely endorse what my hon. and learned Friend is saying, not least because of the acquis itself. Secondly, there are the adjudications under the European Court itself. Thirdly, the charter is like a legal ectoplasm: it seeps into everything. There is no way in which we would ever be able to extract ourselves from the entirety of the provisions in perpetuity.

[The Solicitor General]

I am grateful to my hon. Friend, who raises a genuine concern about the impact of protocol 30. Many Opposition Members were here 10 years ago; they were anxious then to make sure that the protocol was included in the Lisbon treaty. They are now happy to resile from that position and take an entirely different view. I take great issue with that: the legal principles were the same then as now. Nothing has really changed about the potential force of the charter, so I am rather bemused to hear about that volte-face on the part of many Opposition Members.

[Lady Hermon]

I am grateful to the Solicitor General for giving way, particularly given that from a sedentary position earlier he described an intervention of mine as rubbish—but let us slide away from that. As he will know very well, human rights were an essential component of the Belfast agreement, and the protection of human rights was at the core of the Patten reforms of the Royal Ulster Constabulary. For the people of Northern Ireland, therefore, the protection of human rights is essential. By repealing the charter of fundamental rights—not the convention, the charter—we are sending out an extremely negative message to the people of Northern Ireland. Can he offer reassurances on that point?

[The Solicitor General]

I certainly can. First, we are not repealing anything. Secondly, the dog that has not barked in this debate is the European convention on human rights, which is much supported by both sides of the House, very much part of our law and a fundamental part of the underpinning of many of the human rights—

[Joanna Cherry]

rose—

[The Solicitor General]

I know that the hon. and learned Lady treasures and rightly places great value on those human rights. I give way to her.

[Joanna Cherry]

Can the Solicitor General confirm once and for all that reports that the Prime Minister wants to run the next Tory party general election campaign on a pledge to repeal the Human Rights Act and withdraw from the convention are incorrect? [Interruption.] Conservative Members roll their eyes and make a noise. I am giving him the opportunity to confirm that that is incorrect.

[The Solicitor General]

May I just calm the hon. and learned Lady? [Interruption.] Well, she is making a point that is frankly not the case. We have committed to supporting our membership of the European convention throughout this Parliament, and that is a position I entirely support.

[Joanna Cherry]

What about the next Parliament?

--- Later in debate ---

[The Solicitor General]

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

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

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

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

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

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

[Mr Grieve]

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

[The Solicitor General]

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

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

[Sir William Cash]

Will my hon. and learned Friend give way?

[The Solicitor General]

I must press on, I am afraid.

The amendments tabled by my right hon. and learned Friend the Member for Beaconsfield relating to the way in which we designate EU legislation make important contributions to the debate, but they are laden with problems. The sheer volume of what we are dealing with—well over 15,000 pieces of legislation—leads me to draw back from trying to create a convenient categorisation of retained EU law. With the greatest respect, I think it far wiser for the Government to approach each item on a case-by-case basis, not making glib assumptions and trying to downgrade EU law, but getting each particular measure right.

Amendments tabled by the hon. and learned Member for Edinburgh South West and others deal with, again, the debate on clause 6 and the interpretation of retained EU law. I entirely understand why the amendments were tabled, because the debate is intense, but I would say to those Members, with respect, that I think less is more. The more we try to enshrine in law principles such as persuasive authority—which is in one of the amendments—the more I see the potential for judicial head-scratching and litigation of a type that I do not believe the judiciary would welcome. I have said it before and I say it again: I trust our judiciary to answer the question put before them rather than to survey like lions of the constitutional savannah and to run across the landscape. They answer the question that is put to them, and I trust them to do that and to use the discretion that quite naturally they should be given.

In relation to the new clause in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas), it is clear that the Government regard animals as sentient and we of course support the sentiment behind the new clause, as we did on a previous occasion, but we could not support it then and the reasons for not supporting it have not changed. Article 13 places an obligation on the EU when developing certain policies, and on EU member states when developing and implementing those policies. That obligation, because animals are sentient beings, is to have full regard to their welfare requirements, but article 13 applies only to a limited number of EU policy areas, and frankly it also allows for practices that we would consider cruel.

[Caroline Lucas]

I would be interested to know what policy area the Solicitor General thinks the EU provision does not cover: what does he want to cover that the EU does not? Secondly, would it not be safer just to have this amendment in the Bill to make sure we have legal certainty, because he cannot guarantee that the Government Bill will get on to the statute book before we leave the EU?

[The Solicitor General]

May I reassure the hon. Lady by pointing out that there are many areas on which we have heard debates, such as on live importation? I want to make sure the new domestic law we introduce is comprehensive in a way that I know she would fully support. Cross-referencing to the obligations in article 13 —which apply only to EU policies, not to UK policies—would, if anything, create more confusion once we have left the EU.

Frankly, article 13 has not delivered and its effect on domestic law is minimal, and as my right hon. Friend the Environment Secretary has said, we can do better. We have made it clear that we intend to retain, and indeed enhance, our existing standards of animal welfare once we leave. This Bill will convert the existing body of EU animal welfare law into our law and will make sure the same protections are in place in the UK and that laws still function effectively after we leave.

The purpose of this Bill is not to improve EU laws; it is about providing a functioning statute book. That is why, as the hon. Lady has acknowledged, the Government have now published draft legislation—the Animal Welfare (Sentencing and Recognition of Sentience) Bill—which sets out why we can do it better. It is a significant improvement on article 13; it will impose a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas in article 13.

I also say to the hon. Lady that it is open to public consultation and we have to respect the views of thousands of members of the public who will be coming forward and making—[Interruption.] The hon. Lady believes in open and public consultation and democracy, and that is why we are doing what we are doing. [Interruption.] It ill behoves the hon. Lady to assume that my party somehow lies on a lower moral plain when it comes to issues of animal welfare. We share the passion and commitment to animal welfare that she professes and I know many other Members in this House do—I look to the hon. Member for Bristol East (Kerry McCarthy) as a shining example. We want to hear from the public and their view about it, and we want to get it right in domestic legislation, which is the right place for it.

There is much I could say about the wonderful, if small, British overseas territory of Anguilla. Having visited it myself in a ministerial capacity, I was very grateful to the hon. Member for Ilford South (Mike Gapes) for his description. We are very conscious not only of the importance of Anguilla, its people and its economy, but the need to make sure that the concerns of the Anguillan Government are considered and the rights people have in Anguilla, which are exactly the same as those of UK nationals, are preserved after we leave the EU. We will make sure that that situation will not change.

The debate on the charter has been an important one. It has been a further stage in the way in which we have looked carefully at the Bill. The Government remain open and we are listening to all views on how we can get this right. I am sure that, as the Bill makes its way into another place, the deliberations of this House will have done much to enhance the quality not only of the Bill but of our democracy itself.

[Kerry McCarthy]

I thank the Minister for praising me as a shining example on animal welfare, but that does not quite make up for my disappointment that he has failed to address the issues in my amendments. I therefore seek to press amendment 57 to a vote.