European Union (Withdrawal) Bill

Steve Baker Excerpts

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

[Sir Oliver Letwin]

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

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

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

[Sir Oliver Letwin]

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

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

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I want to give another example that is minor but of some significance. At the moment, European regulations provide for people to get compensation if their flights are delayed. That includes short delays, whereas in most parts of the world insurance is provided only if a flight is delayed for more than 24 hours. Let us suppose that after exit day the Government were lobbied by airlines, airports or whoever to say that they wanted to restrict the scope of that legislation because it was not compatible with policy in this country. It would then be very simple for the Government to make a qualification of 24 hours’ delay before compensation could be paid through any scheme that they brought in. That is a simple thing that does not sound dramatic, but it will affect thousands of people every year out of the many millions who make these journeys.

[Mr Baker]

rose—

[Tommy Sheppard]

I will give way in a moment, but I want to give a third example, which the Minister may also wish to talk about, regarding the common agricultural policy. At the moment, Scottish farmers are waiting on £160 million of refund payments under the CAP because of the way that it was changed in recent years. The way in which those payments are to be distributed is currently the subject of EU regulations, but what if the Government felt that that was somehow unfair and they wanted to change it? Then, without reference to primary legislation and or to Parliament, they could do so, and the material amount of money that farmers would get would be different from what they expect now. That is just a simple illustration of how these policies could change. I now happily give way to the Minister if he still wants to intervene.

[Mr Baker]

Could the hon. Gentleman revisit each of the examples he has given and explain why he thinks that they would be deficiencies arising from our withdrawal from the EU, because having listened carefully to him, I do not think that, as my hon. and learned Friend the Solicitor General is saying, any of them could be classed as deficiencies arising from our withdrawal?

[Tommy Sheppard]

I do not think that they are deficiencies—that is not my point. My point is that a Minister or a future Minister might regard them as deficiencies, and therefore might change the law in this way.

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[Mary Creagh]

My hon. Friend raises an excellent point, which has also been raised by the European Chemicals Agency. Those registrations, which will have cost our businesses £250 million, will fall on exit day. I know that that particular agency does allow third countries to participate, but when I tabled a parliamentary question to various Departments about the work they had done to prepare to duplicate the work of those regulatory agencies, I got a series of flannel-type replies that essentially said, “We don’t know how much it is going to cost, we don’t know what the system is going to be and we haven’t really started the work.” That is simply not good enough. Businesses and citizens deserve certainty. We are going to need between 800 and 1,000 statutory instruments before exit day to correct retained law. In a letter to the Environment, Food and Rural Affairs Committee in September, the Environment Secretary said that there were 850 pieces of legislation relating to his Department that would no longer work after exit day unless they were corrected. That is an absolutely huge body of law.

Clause 7, as we have heard, gives Ministers powers to make regulations that they believe are appropriate—again, I dispute what “appropriate” might be—to

“prevent, remedy or mitigate…any failure of EU retained law to operate effectively”—

again, how do we know what the full scope of this clause will cover? This is a huge amount of law—

“or…any other deficiency in retained EU law”

where this arises from exit. The Bill’s explanatory notes contain a worrying and rather brazen example of what this means. They use the example of the UK having to obtain an opinion from the EU Commission, stating:

“In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body”—

should the Government decide to have one—

“or remove this requirement completely.”

Once we start to see the removal of reporting and enforcement requirements, we get to the heart of the Bill, which is that Brexit is a deregulators’ charter. This is about taking rights away and about ensuring that environmental and social rights are lost to our citizens. I do not want to see Ministers making those sweeping changes with no scrutiny in this place.

In part 1 of schedule 7, paragraph 3(2) waives the affirmative procedure for regulations where the Minister is of the opinion that

“by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.”

That basically says that the Government will not consult this House if the matter is urgent. They have said that they will accept the amendments tabled by the Procedure Committee Chair, the hon. Member for Broxbourne (Mr Walker), but those provisions could be waived if a Minister was of the opinion that the regulations were urgent. The Government want to pass 800 to 1,000 statutory instruments, 850 of which are in the environment sphere. Can anyone tell me which of those regulations will not be urgent, given that they need to be passed before exit day?

[Mr Baker]

May I reassure the hon. Lady that it is the made affirmative procedure that is available for urgent instruments, so the instrument would have to be laid before both Houses.

[Mary Creagh]

But that would still be the negative procedure—

[Mr Baker]

No, it is set out in the schedule. It is the made affirmative procedure, which means that once the instrument has been made, it must be laid for a resolution of both Houses.

[Mary Creagh]

I thank the Minister for that clarification.

What could possibly be watered down? The Environmental Audit Committee asked the Transport Secretary for a guarantee that air quality standards would not be watered down after Brexit, but he refused to give us that guarantee, saying that he found it

“hard to believe that any Minister is going to stand before this House and argue for a reduction in air quality standards.”

He is right. No Minister will have to stand before this House and argue for that, because the Bill does away with that requirement. We saw the Secretary of State for Exiting the European Union’s mask slip once before during his statement to this House on the White Paper, when he said:

“This is about reversing—well, not reversing but amending—and dealing with 40 years’ accumulated policy and law.”—[Official Report, 2 February 2017; Vol. 620, c. 1220.]

That was a Freudian slip that I return to time and again. We have also seen that from the Environment Secretary. Paeans have been heaped on his head, but in April, between his visiting Donald Trump in January and his rehabilitation to the Cabinet, he railed against the habitats directive, which he now somehow wants to protect from himself. He talked about homes in his constituency being governed by the habitats directive and how onerous it was for developers to have to offset their projects with green spaces. There is obviously more joy in heaven over one sinner who repents, but he was a deregulator before his damascene conversion. He is now deeply penitent, spending his day listening to the experts, and has since acknowledged that the environment needs to be protected from

“the unscrupulous, unprincipled, or careless”.

I wonder which of his colleagues he had in mind and who may yet succeed him at DEFRA.

How might Ministers go about watering down EU standards? The 2008 classification, labelling and packaging regulation or CLP regulation—CLP means something quite different in Labour terminology—is an example of direct EU legislation under clause 3, which will become retained EU law under clause 6. The CLP regulation aligns the EU’s system of classifying, labelling and packaging chemical substances. It enables chemical products to be traded in the European single market while protecting workers, consumers and the environment. It is why drain cleaners—the sulphuric acid that has been used in the terrible acid attacks—and paint strippers bear the red diamond hazard signs, with which we are all familiar. The regulation will need to be corrected after exit day, but the corrections proposed in the Government’s delegated powers memorandum show how the CLP regulation would be dramatically watered down.

The draft statutory instrument proposes to omit article 46 of the CLP regulation. Article 46 obliges the Government to enforce the safety standards in the regulation and to report on how well those standards are being enforced. In that draft SI, the Government say that because the Commission does not exist, they do not need to report to the Commission, and because they do not need to report, they do not need to enforce. This is a granular and detailed amendment, but that is the sort of thing that the proposed sifting committee will have to consider with an electron microscope to get to the heart of every single deficiency, some of which—with the best will in the world—will not appear until there is a legal challenge. We do not want the labelling and packaging of dangerous chemicals not to be enforced and not reported to any body. Some hon. Members may not be as sceptical as I am about Ministers’ intentions, but none of us can predict the future. We have had three Environment Secretaries in as many years.

Amendment 138 would protect retained EU environmental law, requiring Ministers to certify that they are satisfied that regulations made under clause 7 will not remove or reduce any environmental protection provided by retained EU law. That certification—similar to that created by the Human Rights Act—would be justiciable, meaning that it can be challenged in a court of law. An individual or group could apply for a judicial review if they felt that regulations made under clause 7 had removed or reduced environmental protection. That would not delay leaving the EU, but it would provide a vital check on the powers in clause 7, and it protects the protections.

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Given that amendment 385 and new clause 77 are endorsed not only by 21 Labour MPs, but by Members from almost every party, including the Conservatives, will the Minister please tell the Committee whether the Government will accept the principle of the amendments?

[Mr Baker]

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

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

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

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

“appropriate to prevent, remedy or mitigate—

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

(b) any other deficiency in retained EU law,

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

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

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

[Sir Oliver Letwin]

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

[Mr Baker]

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

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

[Mr Leslie]

Will the Minister give way?

[Mr Baker]

If I may, I will explain my approach to interventions, which I should have mentioned at the beginning of my speech. My speech has about 24 sections to address the 130 amendments that have been tabled. With respect to the hon. Gentleman, I would like to finish speaking on clause 7 stand part before I come on to his amendment. If he will allow me, I will give way to him then.

Secondary legislation made under this power is subject to entirely normal parliamentary procedures. I will come on to talk more about how we ensure sufficient scrutiny of secondary legislation when I speak to the amendments. The Government have always been clear that we will listen to the concerns of Parliament during the passage of the Bill and reflect on its concerns. We are committed to ensuring that Parliament has the right opportunities to scrutinise the Bill and its powers, so I am glad to have the opportunity to address concerns that have motivated many Members to table amendments to the scrutiny provisions in the Bill, alongside the debate on the powers themselves.

We should, however, all be in no doubt that without this power vital functions could not be carried out because they would not be provided for in our law. The UK could have obligations to the EU still existing in statute that would not reflect the reality of our new relationship. There would be confusing errors and gaps in our law. I say again that we do not take lightly the creation of delegated powers, but neither do we take lightly the imperative to deliver a stable, orderly exit that maximises certainty for the UK. Clause 7 is essential to achieving that task.

New clause 18, tabled by the hon. Member for Nottingham East (Mr Leslie), calls for an independent report into the constitutional implication of the powers in clause 7. There have already been a number of such reports and this is likely to continue. For example, the report he suggests sounds similar to the excellent and thoughtful report published recently by the Exiting the European Union Committee. A requirement for one more report after Royal Assent would, it seems to me, add little to the Bill and the definition of its powers. I reassure the House that the Government have listened to Members and to the Committees that have reported on the Bill.

I will turn a little later to amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, but I am glad to report that the Government said yesterday that we would accept the amendments to enhance scrutiny of the powers through a sifting committee. Taken together with Government amendment 391 on the content of explanatory memorandums, we believe the amendments deliver more than the sum of their parts, so the House can be assured of the effective scrutiny of the powers in the Bill. I hope that reassures the hon. Member for Nottingham East, but I will give way if he still wishes to intervene.

[Mr Leslie]

The Minister mentioned clause 7(5) in relation to the regulatory powers to replace, modify or abolish public service functions. He will know that one of my amendments would delete the Government’s ability to abolish functions by those orders. I wonder whether he could give us examples of public service functions or regulatory activities currently undertaken that the Government may wish to abolish.

[Mr Baker]

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

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

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

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

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

[Mr Grieve]

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

[Mr Baker]

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

[Mr Cox]

I wonder whether my hon. Friend might be attracted by this idea. At the moment, as drafted, the clause gives an inclusive, non-exhaustive list of examples, but I wonder whether the principle of ejusdem generis might not assist us if it were slightly redrafted. One could draft it so that any extensions beyond the inclusive list had to be of the same kind or species as those that were listed. That might give some comfort, if they have to be of a similar character to those enumerated in the Bill.

[Mr Baker]

I am extremely grateful to my hon. and learned Friend, and I would be happy to meet him, our legal team and my right hon. and learned Friend the Member for Beaconsfield to take their suggestions on board. I am keen to address this, and I know that the Secretary of State is keen to do so, but I am not in a position today to have tabled or accepted an amendment. I ask them to bear with me and have further meetings with us and our legal teams to try to find a way through.

[John Penrose (Weston-super-Mare) (Con)]

The Minister is being very generous and carefully considered in his responses. May I just check what he has said? Is he saying that he intends, if he can, to bring forward an amendment, perhaps on Report, to fix this, after these conversations have taken place, given the sympathy he says both he and the Secretary of State have for the amendments, or is he unable to give that promise to the Committee?

[Mr Baker]

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

[Mr Grieve]

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

[Mr Baker]

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

[Sir Edward Leigh (Gainsborough) (Con)]

Will my hon. Friend allow me to intervene?

[Mr Baker]

I will give way once, but then I will make some progress, because I am 15 minutes in already.

[Sir Edward Leigh]

My hon. Friend has taken several interventions. Some of us have loyally supported Ministers throughout this process, and we want him to be robust, keep his lead in his pencil, deliver the Bill and ensure that none of our laws are left in limbo. I encourage him to the last.

[Mr Baker]

I am extremely grateful to my hon. Friend for his robust support, and I shall certainly watch out for my lead.

Our approach is to provide for the greatest possible scrutiny and transparency of the statutory instruments as they come forward. We began that process of providing transparency in the delegated powers memorandum accompanying the Bill, and in recent days we have published further information on how clause 7 would be used, including yesterday two draft SIs in the key area of workers’ rights, but there is more we can do to provide for scrutiny and transparency, which brings me to amendments 391 and 392 to 398, which will come before the Committee for a vote tomorrow.

I am pleased to repeat that the Government intend tomorrow to accept amendments 392 to 398, tabled by my hon. Friend the Member for Broxbourne, who is not here, but who nevertheless is a great champion of Parliament against the Executive, as he has demonstrated on multiple occasions. The Procedure Committee, which he chairs, agreed the amendments unanimously. I pay particular tribute to the Delegated Powers and Regulatory Reform Committee, whose report informed the Committee’s work, I understand. If his amendments are not moved separately, the Government will be happy to move them formally at the appropriate moment.

The amendments will establish a sifting committee in the House to look at instruments made under the power in clause 7 and two other key powers in clauses 8 and 9. I draw the Committee’s attention to the draft Standing Orders that my right hon. Friend the Leader of the House has published to establish a new Select Committee to consider the negative instruments in the way that my hon. Friend the Member for Broxbourne proposes. The amendments draw on the expertise of the Procedure Committee, and the Government believe that they offer a solution that will give transparency to the House over the Government’s choice of procedure and ensure that the House can recommend that any negative instrument under clauses 7 to 9 instead be debated and voted upon as an affirmative instrument.

The Government have also tabled amendment 391, which will place our commitments to transparency in the Bill and require that explanatory memorandums relating to each statutory instrument include a number of specific statements. The amendments are aimed at improving the scrutiny and transparency of the SIs that are to come. If the House accepts them, they will together be more than the sum of their parts. The combination of the proposals of the Committee and the Government will mean that any deficiency the Government identify in retained EU law will be transparent to the House. In the light of this information, or any other concerns, the House will have a mechanism to propose a negative instrument for the increased scrutiny provided by a debate and a vote in the House.

I particularly noted what my right hon. Friend the Member for Broxtowe (Anna Soubry) said about the political costs of not complying with the Committee’s recommendation. She nods; I am grateful. I am confident that, given that this proposal is in harmony with the way in which other Select Committees work in relation to the Government, it will provide an adequate means of holding Ministers to account on the choice of procedure.

[Mary Creagh]

In the absence of the hon. Member for Broxbourne (Mr Walker), whose proposal this is, does the Minister envisage introducing the enhanced sift procedure—the mechanism for informing other Select Committees or Members with a particular interest in a subject—on Report?

[Mr Baker]

The hon. Lady has put her point on the record, but what we are doing is accepting the amendments tabled by my hon. Friend the Member for Broxbourne. I also draw her attention to the Standing Orders.

A number of Members have referred to the general need for a reform of the scrutiny of statutory instruments. I spent a very informative weekend reading the Hansard Society’s book “The Devil is in the Detail”, which I recommend to any Member who wishes to be fully apprised of the case for the reform of delegated legislation, but I must add that this is not the moment for a complete reform of secondary legislation. What we need to do is accept the amendments from the Procedure Committee, and to move forward.

[Vicky Ford]

Will my hon. Friend give way?

[Mr Baker]

I hope that my hon. Friend will forgive me if I do not. I am very conscious that I am only 20 minutes into my speech.

[Vicky Ford]

May I ask my hon. Friend to give way on this point?

[Mr Baker]

I will do so just the once.

[Vicky Ford]

May I make a very brief observation about the sifting committee and the expertise? In my experience, the scrutiny of detailed European legislation is sometimes best performed by people with expertise in it. That is why the House of Lords EU Committee has sub-committees on financial affairs, external affairs, energy and environment, justice, home affairs and so forth. Would my hon. Friend at least consider using a sub-committee of that kind, given that it might enable him to complete the sifting process more quickly?

[Mr Baker]

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

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

[Mr Grieve]

Will my hon. Friend give way?

[Mr Baker]

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

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

[Mr Grieve]

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

[Mr Baker]

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

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

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

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

[Yvette Cooper]

It is my understanding that the Minister is saying that courts that were told that Ministers had two options, both of which might be necessary solutions to a particular problem, would therefore say that neither passed the necessity test because Ministers had chosen between the two of them. That sounds utterly ludicrous as a way in which the courts would make a decision. Will the Minister elaborate by providing a case law example of a situation where the courts have been given such a necessity test and have decided to rip up all necessary options on the basis that there were too many necessary choices?

[Mr Baker]

I will see whether, before I sit down, my memory can be jogged on an example of case law, but I am only a humble aerospace and software engineer and I do not mind saying to the right hon. Lady that I have sometimes observed that we dance on the head of a pin over particular words. In order to protect the law and the public purse, I think the Law Officers would require me to take appropriate advice from lawyers on the nature of these words and to abide by it as we proceed through the legislation.

[Joanna Cherry]

Earlier in our debate, the right hon. Member for West Dorset (Sir Oliver Letwin) said that we all know what “appropriate” means and so would a court. Can the Minister tell us what “appropriate” means in this context?

[Mr Baker]

I think what we would say to the hon. and learned Lady is that “appropriate” will follow the plain English definition, which she will find in various places, but what I want to do is move on.

I want to set out why it is important that the test of appropriateness extends to the use of the power in clauses 8 and 17, to which the right hon. Member for Ross, Skye and Lochaber has tabled amendments 205, 207, 208 and 216. For example, leaving the EU, the customs union and the single market may alter the way in which the UK complies with its international legal obligations in relation to taxation, and there will not always be a clear single choice about how to comply with those obligations. Clause 8 will give Ministers the flexibility, as necessary, to make those changes. Using the word “necessary” would risk constraining the use of the power to the extent that where it is appropriate for the UK to adjust our domestic legislation to ensure compliance with international obligations but where there are multiple ways to do so, we might not be able to ensure compliance with our important obligations under international law, thereby undermining the core intention of clause 8.

[John Penrose]

rose—

[Mr Baker]

I shall be here for some hours if I take too many interventions, but I will give way to my hon. Friend.

--- Later in debate ---

[The Temporary Chair (Mr Gary Streeter)]

Order. This is a rather long intervention, and the Minister has made it clear that he does not wish to take too many more interventions as he is seeking to make progress.

[Mr Baker]

I am grateful to my hon. Friend the Member for Weston-super-Mare for putting his own clarification into my remarks.

The Government wish to take the minimum powers necessary—the minimum powers required—to do the job before us, which is to deliver a working statute book by exit day. We do not intend to make any major changes of policy beyond those that are appropriate to deliver a working statute book, where the law after exit day is substantially the same as the law before exit day, so that individuals and businesses can rely on it. The issue surrounding the definitions of “necessary” and “appropriate” is a technical and legal one, rather than a general issue of intent, and I stand by what we have said. We understand that “necessary” would be interpreted as logically essential and could land us with the problem that I have illustrated, with Ministers facing a number of choices about how to proceed. So if I may, I will leave that issue there.

The use of the word “equivalent” in new clause 24 is just as problematic. Returning to the example of a reciprocal arrangement that no longer exists, if we were —with the support of this House and entirely appropriately in line with our agreements with the EU—to end the obligations that were placed on the UK in law, this new clause could lead to a court taking the view that that would not be keeping the equivalent scope, purpose and effect of the law in relation to how the law stood before exit. This would undermine the Bill’s core objective of maintaining a functioning statute book once we leave the EU. I therefore urge right hon. and hon. Members not to press their proposed amendments, and the hon. Member for Brighton, Pavilion (Caroline Lucas) to withdraw her new clause.

I now want to address new clauses 1, 6 and 26, and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130, tabled by the Leader of the Opposition and others. These would all change the scrutiny process for secondary legislation made under the Bill. We have heard some fine speeches from distinguished parliamentarians, and it is clear that a great deal of thought has gone into the amendments and the arguments supporting them. First, let me be clear that we are committed to appropriate parliamentary scrutiny throughout the whole process of our withdrawal from the EU—Members will know that we make statements, Committee appearances and so on—and, as my right hon. Friend the Prime Minister has already made clear, Parliament will have a vote on the contents of the withdrawal agreement. Crucially, where we are seeking not to replicate current arrangements but to take substantially new approaches, there will be separate pieces of primary legislation for Parliament to work through, as we are beginning to see with the legislation that is being introduced.

However, we must be mindful of the large volume of statutory instruments necessary and the limited time available to work through them if we are to provide certainty and stability on exit. We are working to the timetable of the article 50 process, and there is over 40 years of EU law to consider and correct to ensure that our statute book functions properly on our exit from the EU. According to EUR-Lex—the EU’s legal database—more than 12,000 EU regulations and over 6,000 EU directives are currently in force across the EU. If the majority of statutory instruments do not complete the parliamentary process before we leave the EU, there will be significant gaps in domestic law, which could raise real problems with real consequences. Our law currently gives powers to EU regulators across a wide range of areas that affect people’s lives, from aviation safety to the environment, and we therefore have a duty to act.

New clauses 1 and 26 and amendments 33, 35, 36, 38, 39, 41, 68, 129 and 130 would all give a parliamentary committee or either House of Parliament the role of deciding the scrutiny procedure that each statutory instrument must follow. We are sympathetic to the intention behind the amendments, which is why we made our announcement in relation to the Procedure Committee’s recommendations. All that is in harmony with the existing arrangements for the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee in the House of Lords.

Amendments 34, 37 and 40, tabled by the Leader of the Opposition, would apply the affirmative procedure to a statutory instrument of sufficient policy interest, which is ambiguous and does not involve a practical, clear trigger for the affirmative procedure. Ultimately, it would end up being for the courts to decide what is “of sufficient policy interest”, creating legal uncertainty, which is contrary to the Bill’s central aim. I hope that Opposition Members will agree that that has been superseded by our commitment to the sifting committee.

Amendment 22, tabled by the hon. Member for Rhondda (Chris Bryant), would introduce a means for the Leader of the Opposition or a certain number of MPs to trigger an automatic debate on an SI made under the negative procedure. Again, I hope that the hon. Gentleman will accept that that has been superseded by the sifting committee.

I will now address several amendments relating to the important matter of environmental protection, on which this Government have a proud record. Amendments 96, 97, 98, 138, 333 and 334 and new clauses 27, 62 and 63 were tabled by the Leader of the Opposition and others. We agree with the intentions behind the amendments and new clauses and understand hon. Members’ concerns, but it is essential that the clause 7 power exists as drafted in the Bill. Its purpose is to make changes, often of a technical nature, to deal with deficiencies in retained EU law. While simple in nature, it is essential to ensuring that legislation that protects the environment and rights remains consistent and continues to function effectively once we leave the EU.

Turning to new clauses 27, 62 and 63, the UK has always had a strong legal framework for environmental protections, and that will continue. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs has recognised the risk of the governance gap, which has been explained, and that is why he announced on 12 November our intention to consult on a new independent and statutory body to advise and challenge the Government, and potentially other public bodies, on the environment, stepping in when needed to hold bodies to account and to enforce standards. We will consult on the specific scope and powers of the new body early next year. We understand the intention behind the new clauses, but they would create problems for our framework of environmental governance, about which we have made announcements.

New clause 27 would go further than the existing governance mechanisms for environmental protections set out in EU and UK law. For example, it would require the Government to give powers to this new independent body or bodies to set standards or targets and to co-ordinate action on the environment. Within the current EU mechanism, the exercise of those powers, such as legislating to set standards, would typically involve the Council of the European Union and the European Parliament; it does not normally rest solely with an independent body or bodies. Legislating for new standards and targets should be a matter for our Parliament in future.

New clause 62 would prejudge the consultation’s outcome and would necessarily limit the possible remit of a new body by requiring that it be established by regulations under clause 7. This power for functions currently exercised by EU institutions could be replicated by being given to UK bodies to exercise. Therefore, for example, significant domestic changes to the law post EU exit or new areas of the environment would fall outside its remit.

While we support the intention behind amendments 97, 98, 96, 138, 333, 334 and new clauses 62 and 63, they give no definition of what an environmental protection is or precisely how one might know that such protections were being weakened or narrowed. We believe that the hon. Members would be preparing the starting gun for a vast quantity of litigation so we cannot accept the amendments to clause 7, 8 or 9 or the new clauses.

Allow me to reiterate, Mr Streeter. Clause 7 powers are temporary powers limited in scope. Restricting the use of those powers further, as many of the amendments seek to do, would threaten rights and protections established in domestic and EU law, which we will be retaining. This is contrary to what I believe is the intention behind many of the amendments, so restricting the power as proposed would be counterproductive and we cannot accept the amendments.

Amendments 25, 26, 27, 52, 109, 111, 115, 266, 268, 267, 222, 363 to 373 and new clause 76, plus those amendments consequential on them, deal with the protection of rights in relation to the power in clause 7 or parallel restrictions in clauses 8 and 9. The UK has a long tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The decision to leave the EU does not change that. I reiterate the Government’s firm commitment to protecting rights throughout the EU exit process. As we have debated previously, the Bill ensures that, so far as possible, the laws we have immediately before exit day will continue to apply. As part of this approach, clause 4 will continue to make available any rights and so on which currently flow into domestic law through section 2(1) of the European Communities Act 1972 within the overall scheme of the Bill.

Moreover, the clause 7 power is already restricted so that it cannot amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it. The restrictions sought by amendments 25, 109, 363 and 364 are therefore not necessary. I am aware that amendments 365, 26, 366 and 367 would place the same restrictions on the powers in clause 8. The clause 8 power is already restricted so that it cannot amend, repeal or revoke the Human Rights 1998 or any subordinate legislation made under it. The restrictions sought by amendments 365 to 367 are therefore not necessary.

[Tom Brake]

The Government have rightly excluded the Human Rights Act. I just want to understand why the Equality Act 2010 has not also been excluded.

[Mr Baker]

I will come on to the Equality Act within a page.

Amendments 52, 266, 267, 268, 370, 371 and 372 have been tabled by the right hon. Members for Normanton, Pontefract and Castleford, for Ross, Skye and Lochaber and for Carshalton and Wallington (Tom Brake). They would prevent any changes to the Equality Act. As part of the Government’s clear commitment to maintaining equalities protections throughout the process of EU exit, we have tabled amendment 391, which will ensure that the amendments that will be made to equalities legislation under this and certain other powers in the Bill are transparent, and provide confirmation that the Minister has had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act.

Indeed, hon. Members may not be aware that the Government have already published a document on our website setting out the changes that we intend to make to the Equality Act, making it clear that they are limited to technical adjustments that are designed to ensure that the protections established in the Act continue to operate after exit.

Let me just run through them for the right hon. Gentleman. They include: references to the European Parliament; references to future EU obligations, including new EU obligations implemented under the European Communities Act 1972; references to EU law as a generic term and harmonisation measures; references to specific EU directives which are set out in the paper; and, finally, references to the UK as part of the European economic area. So I commend that paper to right hon. and hon. Members who are interested and/or concerned about it. With that in mind, as changes are necessary, as set out in the paper, I urge right hon. and hon. Members not to press their amendments.

--- Later in debate ---

[Mr Grieve]

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

[Mr Baker]

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

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

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

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

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

[Tim Loughton]

I am grateful for the Minister’s clarification, and I do hope that we can make some progress in, say, an immigration Bill. Nevertheless, will he explain to me why it requires the co-operation and agreement of 31 other countries for the UK to be able to say that we will take genuine unaccompanied asylum-seeking children with relatives who are legitimately in this country but who happen not to be their parents?

[Mr Baker]

My hon. Friend makes his case with particular force. I am sorry to have to tell him that I am not in a position to accept his new clause on that basis. I ask him to work with members of the Government on the immigration Bill that will contain the measures that he and the rest of us wish to see to ensure that we meet our humanitarian obligations.

[Stella Creasy]

rose—

[Mr Baker]

I will give way to the hon. Lady once.

[Stella Creasy]

The Minister’s colleagues gave a statement on 1 November 2016 that made the commitment to take children from Europe, and it is those children whose rights under the Dublin regulation would be taken away. Can he understand the concern about the fact that he has just announced that the requirement to work with 31 other countries would supersede that? Will he give a cast-iron guarantee that the commitment made in that statement on 1 November 2016 to take children from Europe and to do our fair share for refugee children will be honoured in full?

[Mr Baker]

These are matters for my right hon. Friend the Home Secretary and the Bills for which her Department is responsible. I hope the hon. Lady will forgive me and understand that it is with the Home Office that these matters need to be taken forward. This Bill is about how we leave the European Union with certainty, continuity and control in our statute book.

Amendments 15 and 16 are on the power to deal with deficiency—

[Mr Kenneth Clarke]

rose—

[Mr Baker]

I just say to my right hon. and learned Friend that I am 51 minutes into my speech and I am only around halfway through it. I would prefer to press forwards.

[Mr Clarke]

I understand my hon. Friend’s difficulties. He is responding to new clauses and amendments on an amazingly wide range of topics that keep going into other departmental areas, but it is quite useless if the winding-up speech consists of the Minister saying in a series of statements that he is in no position to answer the questions. If there is an important Home Office question, as there is with the issue of child refugees, it would be normal for a Home Office Minister to be in attendance and to rise in some suitable way to answer the debate. My hon. Friend is reading very competently his carefully prepared brief, which concludes at every stage by saying, “I hope that the amendment will be withdrawn.”

[Mr Baker]

I am grateful for my right hon. and learned Friend’s intervention, which has disappointed me neither in the sympathy that he expressed for my predicament nor in the sting in its tail. The Bill is the responsibility of the Department for Exiting the European Union, with the collaboration of other Ministers who are assisting in its passage. He is absolutely right that it covers a wide range of issues. I believe that I have given an answer on the particular point raised.

On two points of technical legal detail, I have asked for my memory to be jogged in the course of the debate, and I very much hope that I will be able to give an answer before I sit down. My right hon. and learned Friend will understand that I am not, like him, a learned Member of this House; I am a humble aerospace and software engineer. It is necessary for me to go through the clauses of the Bill that relate to parliamentary scrutiny and do not require technical legal expertise.

[Wera Hobhouse (Bath) (LD)]

rose—

[Mr Baker]

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

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

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

[Mr Grieve]

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

[Mr Baker]

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

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

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

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

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

On amendment 359, we seek clarity on the current wording in relation to deficiency by means of a loss of reciprocity. We want to clarify that the Government do not intend to use it in a broad sense—in theory, it could be used in a very wide sense. In fact, it is intended to be narrow, so that major changes to policy, such as citizens’ rights to work or to come to this country, will be effected by primary regulation, not by regulation under clause 7.

[Mr Baker]

I understand my hon. Friend’s point. Just to reassure him: it is our firm intention to carry through the agreement, which he can read in the joint report of the negotiators, into legislation so that citizens can rely on it in the United Kingdom through that withdrawal agreement and implementation Bill, which I hope we can put before the House in due course.

Amendments 31, 32 and 57 seek to remove so-called Henry VIII powers. I can confirm that amendment 32 is not necessary because the power in clause 7 cannot be used to amend the Act itself. It would be outside the scope of the power—ultra vires. Neither can the power in clause 8 be used for this purpose. Let me be clear: only the power in clause 9 states that it can amend the Bill. None of the other powers in the Bill make that statement. As I said earlier in an intervention, in the event that the use of a clause 9 power is proposed to amend the Act, it would be subject to the affirmative procedure.

--- Later in debate ---

[Mr Grieve]

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

[Mr Baker]

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

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

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

[Mr Grieve]

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

[Mr Baker]

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

[Mr Charles Walker]

May I apologise, as Chair of the Procedure Committee, for arriving late to my hon. Friend’s speech? I thought I had missed all of his speech, then I realised I had missed half of it, but it now seems that I have only missed a third of it. However, I do apologise for arriving late, and I hope he accepts that apology at face value.

[Mr Baker]

I am extremely grateful to my hon. Friend.

Let me return to my notes in order that I might give the Committee an accurate presentation of these measures. Where this type of specialist legislative function exists at EU level, we will need to ensure that the responsibility is transferred to the appropriate UK body so that the UK has a fully functioning regulatory regime in time for day one of EU exit. This might be the case where, for example, it is more appropriate for the Health and Safety Executive in the UK to update lists of regulated chemicals than the Secretary of State, or where it would make sense for the Prudential Regulation Authority to take on responsibility for updating monthly the detailed methodology that insurance firms must use to prudently assess their liabilities. Both these legislative functions are currently carried out at EU level and will need to be taken on by the appropriate UK regulator after exit.

To reply to the point made by my right hon. and learned Friend the Member for Beaconsfield, any SIs made under clause 7 that transfer a legislative function or create or amend any power to legislate will be subject to the affirmative procedure. This is provided for in schedule 7. Therefore, Parliament will be able to debate any transfer of powers and consider the proposed scope of such powers and the scrutiny proposed for their future exercise, which will be set out in any instrument conveying that power. Recognising that some of the existing EU regulation that will be incorporated into UK law will be of a specialised and technical nature, clause 7 allows the power to fix deficiencies to be sub-delegated to the UK body that is best placed to perform the task. EU binding technical standards—the detailed technical rules developed by EU regulators for financial services—are a good example of where we might sub-delegate the clause 7 power. These standards, which run to almost 10,000 pages, do not make policy choices but fill out the detail of how firms need to comply with requirements set in higher legislation. The PRA and the FCA have played a leading role in the EU to develop these standards, and so they already have the necessary resource and expertise to review and correct these standards so that they operate effectively in the UK from day one of exit. I appreciate the concerns of my right hon. and learned Friend and the hon. Member for Nottingham East, but I hope I have demonstrated why we cannot accept these amendments.

Amendments 17, 360 and new clause 35 require additional information. As I have said, we have tabled amendment 391, which will require the explanatory memorandums alongside each statutory instrument to include a number of specific statements aimed at ensuring the transparency of the SIs that are to come and acting as an aid to the most effective scrutiny that this House can provide.

I would like to take a particularly special moment to reassure my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), in whose name amendment 360 is tabled, that we have laid in the Library draft SIs that will help everyone to understand the sorts of changes that we might need to make under clause 7. I would like to reassure him that the Treasury has been engaging with the financial services industry extensively since the EU referendum on the range of issues affecting the sector as we withdraw from the EU. That engagement continues and it includes regular official and ministerial discussion with industry and trade associations and bodies such as the International Regulatory and Strategy Group. That includes discussions on our approach to the domestication of EU financial services regulation through this Bill. That will continue and grow throughout 2018. The Treasury is also working closely with the Bank of England and the FCA to ensure the UK’s smooth and orderly withdrawal from the European Union.

By supporting a close working partnership between industry, regulators and Government, the Government will ensure that their approach to domesticating EU financial services regulation is well understood and based on input from stakeholders. Consistent with the objectives of this Bill, the approach in financial services is to provide certainty and continuity for firms after exit with the UK maintaining high regulatory standards. Financial services is one of the areas where a bold and ambitious free trade agreement could be sought. We are ambitious for that deal and we would do nothing in clause 7 to undermine it.

[Robert Neill]

I am grateful to the Minister for devoting that portion of his speech to the detail on financial services. That is important for the City, as he knows, and the proposal to publish draft statutory instruments is a well-tested and welcome route.

[Mr Baker]

I thank my hon. Friend.

[Vicky Ford]

I have a quick question about financial services legislation and deficiencies. I want to get it clear in my head, as a non-lawyer, that deficiencies would not cover material policy changes. For example, European banks, including British banks, currently do not have to hold any capital against sovereign debt issued by EU member states. Changing that could be considered to be dealing with a deficiency, because we will no longer be a member state, but it would be a policy change. Will the Minister confirm that that sort of amendment would be picked up and would go through the affirmative procedure?

[Mr Baker]

The first point to make relates to my hon. Friend’s last point. We have agreed to the sifting committee, which will be able to recommend—

[Peter Dowd (Bootle) (Lab)]

It will be very busy.

--- Later in debate ---

[Mr Baker]

The committee will be busy, and that is why I am so grateful for the fact that several hon. Members—presumably including the hon. Gentleman—seem to be volunteering to do the important duty of serving on it, which no one should take lightly. I say to my hon. Friend that we have been extremely clear that any major change will come through primary legislation, but I cannot say that there will be no policy changes at all, however minor. The reality is that if a function comes back to the UK and we have to make a choice about whether it is allocated to the PRA or the FCA, that could be described as a policy choice.

I want to be clear with the Committee. I cannot say that there will be no policy changes whatever, but I can say that the Bill is about certainty, continuity and control. It is about making sure that the law works the day after we exit in substantially the same way as it worked the day before, from the point of view of those who are subjected to it. I can see that my hon. Friend brings great insight to the matter.

[Matthew Pennycook]

On a related point about the new sifting committee, will the Minister outline the Government’s view—this is partly a matter for Standing Orders—on how the chair of that committee would be appointed and whether Parliament could have a role in the election of the chair, rather than the post being appointed by the Government?

[Mr Baker]

The hon. Gentleman has been generous enough to say that he appreciates that that is a matter for Standing Orders. I am very sensitive to the role and powers of Parliament, which we have discussed throughout proceedings on the Bill. As a Minister, I really do not want to stand at the Dispatch Box and trespass—in this debate, of all places—on Parliament’s right to set its own Standing Orders.

[Mr Charles Walker]

We based the model on the European Scrutiny Committee, in which the Chairman is appointed.

[Mr Baker]

I am grateful to my hon. Friend.

I move on to consent from the devolved Administrations. Amendments 73, 233, 239 and 240 were tabled by the right hon. Member for Ross, Skye and Lochaber and the hon. Members for Airdrie and Shotts (Neil Gray) and for North East Fife (Stephen Gethins). Taking the right hon. Gentleman’s amendments together, we are committed to continuing to respect the devolution settlement fully. We will work closely with the devolved Administrations as we develop fisheries and agricultural legislation, which will be brought through by separate Bills to deliver an approach that works for the whole United Kingdom.

At this point, I hope that the Committee will not mind if I refer to points raised in our previous debate on devolution. Amendments were tabled about a restriction on the power relating to national security. As my right hon. Friend the Prime Minister has said, we are proposing a bold new strategic agreement that provides a comprehensive framework for future security, law enforcement and criminal justice co-operation—a treaty between the UK and the EU—that would complement our existing extensive and mature bilateral relationships with our European friends to promote our common security. That is just one outworking of the Government’s commitment to national security.

I now turn—I think, finally—to amendment 385 and new clause 77. Amendment 385, tabled by the hon. Member for Birmingham, Yardley (Jess Phillips), seeks to replicate the protections in part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014 in relation to protected persons. As I understand it, the amendment seeks to provide that the relevant authorities in England and Wales would continue to recognise and act on the orders made under the EU directive by the remaining member states, whether or not they act on ours.

I congratulate the hon. Lady on her powerful speech, but we cannot accept the amendment at this time because our continued co-operation with other EU member states’ courts is a matter to be negotiated. The outcome of the negotiations is not yet certain, and it would therefore be premature to seek to replicate in our law one side of a reciprocal arrangement that may not continue. However, I am happy to make it clear that if the forthcoming negotiations produce an agreement to continue access to the regime established under the directive, or something like it, appropriate steps in legislation will be brought forward to implement it at that time. I therefore urge her not to press her amendment.

[Jess Phillips]

I hear what the Minister is saying and I take on board that this has to go through the new negotiations. What I am trying to do with the amendment is to ask Ministers to remember that this needs to go through the negotiations, because it was completely missing from the White Paper on the earlier negotiations.

[Mr Baker]

The hon. Lady’s point is well made and has been heard by me and my right hon. and hon. Friends, and I am grateful to her for making it.

The hon. Lady also tabled new clause 77. It may assist the Committee if I explain that the Government are taking forward a range of work to tackle violence against women and girls and that we are already required to lay annual reports before Parliament on the issue in the context of the Council of Europe convention on preventing and combating violence against women and domestic violence—the Istanbul convention.

The coalition signed the Istanbul convention in 2012 to demonstrate its strong commitment to tackling violence against women and girls, and this Government have made absolutely clear our commitment to ratifying it. The convention seeks to continue promoting international co-operation on this issue. Indeed, it is the first pan-European legally binding instrument that provides a comprehensive set of standards to prevent and combat violence against women.

The hon. Lady will know that we have engaged and will continue to engage with a range of international partners, including the EU, in our efforts to tackle this issue. For example, we recently participated in work with the Council of Europe—as Members will know, it includes both EU and non-EU member states—to develop a best practice guide on stopping forced marriage and female genital mutilation.

I know the hon. Lady desires ensuring that Parliament is updated on this issue. As she will be aware, on 1 November we laid the first report on progress towards ratification of the convention, as required by the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017. The report, which we are required to lay annually, sets out the action we are taking to tackle violence against women and girls and how we comply with the measures set out in the convention. In addition, once the UK has ratified it, we will be required to submit regular reports on compliance to the Council of Europe. As right hon. and hon. Members will appreciate, we want to avoid duplicating our existing reporting requirements in this area.

We are committed to doing all we can to address violence against women and girls both domestically and internationally. As the hon. Lady will be aware, our cross-Government strategy outlines our ambition that no victim of abuse is turned away from the support they need. It is underpinned by increased funding of £100 million, and a national statement of expectations sets out a clear blueprint for good local commissioning and service provision. I hope that I have reassured the hon. Lady that the Government have been, and will continue to be, committed to tackling violence against women and girls and to updating the House on our work in this area and that she will therefore not press her new clause.

[Tom Brake]

Will the Minister give way?

[Mr Baker]

Before I conclude my opening remarks, I will give way to the right hon. Gentleman.

[Tom Brake]

It is possible that I switched off, or perhaps nodded off, during the past hour and 20 minutes, but I do not think I heard the Minister refer to my amendment 124 on the single market, which I assume means that the Government are supporting me.

[Mr Baker]

The right hon. Gentleman enjoys a jest, but I hope that the Committee will understand that, as I set out at the beginning of my speech—I have now been on my feet for an hour and 20 minutes, compared with an indication that I would take an hour, so I needed to pare down my remarks—it is not the Government’s policy, as he knows, to remain in the single market and the customs union.

In the interests of allowing other hon. Members to contribute to the debate, I will conclude my remarks. We face an unprecedented legislative challenge, to which the power in clause 7 is the only practical solution. The power is only a temporary solution to achieving our key objective: a functioning statute book in time for exit day. The Government believe that we have made significant concessions on the issue, both with the sifting committee and by putting into statute the requirement to include certain information in the explanatory memorandums. I hope that those concessions have tackled the concerns expressed throughout our consideration of these amendments. I am conscious of the commitment I gave to my right hon. and learned Friend the Member for Beaconsfield in relation to the scope of the powers, and I look forward to working with him. I will finish by thanking my hon. Friend the Member for Broxbourne for all that he has done, with the unanimous support of the Procedure Committee, to ensure that the House has the proposal for a sifting committee.

[Helen Goodman]

It is a great pleasure to follow the Minister, who presented a rather unbending policy posture this afternoon, but with his usual great good humour. On Second Reading I spoke mainly about the problem of the Henry VIII powers and the excessive use of delegated legislation in the Bill, and I feel justified, given the criticism outside the House that this was a power grab by Ministers.

When looking at clause 7, there are two big issues that we need to address: the scope and content of the delegated legislation, and the institutional architecture. I was therefore pleased to be a member of the Procedure Committee when it agreed to a report that acknowledged the problem and said that the House has a unique and unprecedented requirement and that we need special mechanisms to suit the task ahead. When I first told the hon. Member for Broxbourne (Mr Walker) last January that we should be looking into the Henry VIII powers, I think he was rather underwhelmed, but I think that now, on reflection, he is pleased that we did so. Only he could have secured a consensus between, for example, the hon. Members for Chichester (Gillian Keegan) and for Wellingborough (Mr Bone), the Scottish National party and me, which is a great credit to him. Our report sought a committee of the House to oversee all the delegated legislation.

I am happy to support amendments 393, 395, 396 and 397, which will put in the Bill the requirement for a sifting committee. I am even more pleased that the Government have accepted those amendments—the first changes they have accepted since publishing the proposals last summer. They will give the House a key role in overseeing the delegated legislation. As the Minister said, it is extremely important that Ministers will be required to produce explanatory memorandums. Without those, the committee would have a next to impossible task.

I think that the approach whereby the committee will give advice to Ministers so that statutory instruments can be upgraded from the negative to the affirmative resolution procedure is absolutely essential, because it means that the committee will be able to say that on some issues there must be a debate and a vote of the whole House, or that Ministers must provide an adequate explanation. I also think that the timetable that we have set out, of 10 days, is reasonable. However, I have some doubts about amendments 394 and 398, which would allow Ministers to step outside the process when they believe that the matter under consideration is urgent, because, as we all know, that could be abused by being stretched in a way that undermines the process.

I know that hon. Members, particularly those on the Opposition Benches, are somewhat doubtful about the efficacy of the amendments, but I pray in aid the Hansard Society’s assessment—I think it is the most neutral and impartial assessment one could look for—which agrees that the procedure has been strengthened. There is now a requirement to lay accompanying documents. The House will have more power, and the committee will be able to refer statutory instruments to further debate and upgrade the level of scrutiny.

I regret that the amendments do not reflect fully the report that the Procedure Committee published in November, which said that there should be a scrutiny reserve. That is what the European Scrutiny Committee has and I think that that would be better. It would also be better if Ministers followed the Committee’s recommendation to publish now a full list of the delegated legislation they expect to bring forward.

The amendments tabled by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook), who is on the Opposition Front Bench, would strengthen the process significantly by ensuring that Parliament was able to decide rather than just be consulted. He referred to the terrible saga of tuition fees, where the House was ignored by the Government. That is not reassuring and Ministers must know that. Indeed, one wonders at Ministers who did that knowing that this proposed legislation would be brought forward with a great package of statutory instruments under the negative procedure. That seems to be an extraordinary bit of behaviour. My hon. Friend also tabled amendments that would enable raising the scrutiny level to super-affirmative. Perhaps Ministers should still consider that.

Hon. Members interested in the sifting committee’s terms of reference, make-up and membership will have another opportunity to debate them when the Standing Orders come forward. The Leader of the House put forward some Standing Orders, but they are amendable. If hon. Members wish to change them, it is open for them to do so. I remind all hon. Members on both sides of the House that House business is not whipped business, so they do not need to fear—[Interruption.] I can see one Minister looking at me quizzically. House business is not whipped business, so Members can take a view in line with their conscience on what they think would make for the strongest sifting committee.

On the scope of clause 7 and the content and substance of the statutory instruments, Ministers are being very inflexible and I do not think that that will serve them well. My constituents have contacted me—I am sure other hon. Members have been contacted—with their concerns about environmental policy and animal sentience. I know Ministers have another route for dealing with the animal sentience issue. We also have very strong concerns about children’s rights. In September, we had a very good seminar on children’s rights led by Liverpool University’s law department, which brought together people with concerns about this issue from all parts of the United Kingdom, including Scotland and Northern Ireland. I really feel that the Minister’s response on new clause 53 and the position of child refugees is very disappointing, as is what he said about the UN convention on the rights of the child, which is covered by amendments 149 and 150. Now, that has not been debated today, but we will be voting on it later.

I want to point out to the Minister that he cannot rely on the Children Act 1989, which contains provisions on the best interests of the child, in the way he seems to think he can, because it applies only in certain classes of case referring to children. For example, it does not apply to housing decisions. It is simply not the case that the child’s best interest always has priority in English law, and if we wanted to do something about that we would incorporate the UN convention on the rights of the child into English law, as we did with the European convention on human rights and the Human Rights Act in 1998.

The Minister was very forthcoming in his debate with the right hon. and learned Member for Beaconsfield (Mr Grieve) on the question of looking again at the definition of deficiencies and the list of examples in the Bill. However, many hon. Members will have been extremely disappointed by his inflexibility and failure to shift on the question of whether the negative resolution process can be used where the Minister thinks it is appropriate and not necessary. This was covered by my hon. Friend the Member for Nottingham East (Mr Leslie) in amendment 68 and my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) in amendment 49. I have to say to the Minister that I do not think that he convinced many Opposition Members on that.

Similarly, on tertiary legislation, it is incredible to argue that the financial regulators are not making policy choices. They are. It may well be that they are in a better position given the length, complexity and technical nature of such matters to be the people responsible for those regulations. It may well be that they are in a better position to do that than Members of this House, but I do not think the Minister should claim that policy choices are not being made here, because they clearly are being made all the time.

[Mr Baker]

I will have to check the record—I was just flicking through my speaking notes—but I am sure that when I said that there were no policy decisions, that was about a 10,000 page document about how institutions were to comply with regulations. On the particular point about tertiary legislation and the financial regulation system, I feel sure that when the hon. Lady and I served together on the Treasury Committee she would have been as indefatigable a defender of the independence of the Bank of England as I would have been. Surely she does not want to undermine that.

[Helen Goodman]

I do not wish to undermine that. I just want the Minister to present what I believe to be a more accurate picture to the House about the content of tertiary legislation. That is the point that I am making.

It simply comes down to the fact that clause 7 gives Ministers too much scope. That brings into doubt whether the stated intention of the Bill, which is, simply, to translate the body of European law on to the UK statute book, is all that can happen once the Bill is passed. That is the problem with it.

The thing that will probably most concern our constituents is the proposal to abolish the functions of the EU agencies. That is extremely worrying and we do not get clear answers from Ministers on individual cases. My hon. Friend the Member for Wakefield (Mary Creagh) spoke about this in relation to the European Environment Agency and the European Chemicals Agency. The Minister will have seen, as I did yesterday, on the front page of the Financial Times the pressure from the chemicals and pharmaceuticals industries over chemicals and medicines safety regulations. When we ask Ministers in other Departments what will happen, we do not get any certainty. This is not at all reassuring. There are big risks for the economy if we do not handle this much better than the Government are handling it now. The issue of the regulations of the agencies is the thing that can have the most significant impact on the economy. Whatever else people voted for when they voted to leave the EU, they certainly did not vote to lose jobs and be poorer.