This is a necessary Bill; 52% of the population voted to leave the EU, and each of us who have been voted here by our communities to represent them in this debate need to respect democracy, which is why we need to get on with the job of ensuring a smooth exit from the EU. This Bill is a necessary part of that overall process. For the Labour party to vote against the Bill at this early stage-
This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill-it is an administrative measure. I spent many years on the Opposition Benches-on the Front Bench and on the Back Benches-practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made-on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition. Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.
My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.
My hon. Friend sets out the very essence of the Bill. This is not about a sudden change, but about transposing EU law into British law and evolving as we move forward as a sovereign nation.
Although I campaigned and argued for this country to remain a part of the European Union, I fully accept that that is not the majority view of the country. But I would argue that this is the wrong way to leave the European Union. This is not a general enabling Bill; it is a poorly thought-out, complex and undemocratic piece of legislation. One of the most fundamental problems with the Bill is that it amounts to-yes-a power grab by this Government. That power grab takes several forms, but I want to focus on just two aspects. First, there is the widespread use of Henry VIII powers, allowing the Government effectively to bypass Parliament and change primary legislation through secondary legislation. That has, of course, happened in the past, but not on such a huge scale as is planned now. As a result of this Bill, we will see extensive use of those undemocratic powers, because some 12,000 EU regulations will be brought into UK law. Some of them will make changes for technical reasons, but, as the most recent paper from the House of Commons Library states, it is anticipated that others will enable “substantive policy changesâ€ to be made by the Government. So changes are likely to be introduced through Committees, which is why the Government are doing their best to pack those Committees with their own MPs, against the established procedure of the House. We are also seeing an unprecedented power grab with regard to devolution. As a Welsh Member of Parliament and a former Wales Office Minister, I have followed devolution very closely. Many of us expected, as did the devolved institutions themselves, that this Bill would make real the promises the Government set out in their White Paper.
Will the hon. Gentleman give way?
There are many speakers, as we have heard, and I am sorry, but I would rather press on. In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.
In the last Parliament, the Public Administration and Constitutional Affairs Committee took evidence on this matter from the same academic who advised the Scottish Parliament, and he was very clear that the powers being reserved under these proposals were only ever notionally devolved, because they were of course reserved by virtue of our membership of the European Union. This is not a power grab; the Government's objective is to make sure that the devolved Administrations finish up with more powers than they had before.
One animal welfare benefit is that on leaving the EU, we could ban the live export of animals from our ports, which causes such great suffering.
I thank my hon. Friend for making that point, which is one that I was just about to make. CAP funds have even been used to subsidise bullfighting in Spain.
Will the hon. Gentleman give way?
No, I will not take any more interventions. Most critically, even though we apply high animal welfare standards to production in this country, we cannot apply those standards to the food we import, which means that instead of preventing cruelty, which is what we are trying to do, we are simply exporting that cruelty to other countries while disadvantaging our own farmers. We could address that as well. Clearly, in other areas, the EU has been a good thing for the environment-I would not pretend otherwise. The EU has undoubtedly been instrumental in forcing us to clean up our act. For instance, our rivers and beaches are cleaner today because of the EU than they would have been.
Will the hon. Gentleman give way?
I will not. That is why a core responsibility of this Parliament and this Government is to ensure that those key EU regulations-the habitats directive, the birds directive and the sewage sludge directive-have absolute, meaningful, proper, full protection in British law. We have had that commitment, but I should like to hear it a few more times from Ministers during this debate. There are legitimate concerns about this process that need to be addressed in the Minister's wind-up.
Will the hon. Gentleman give way?
I will not, because I am running out of time. First, when a state fails to implement EU law today, there are penalties, but that will no longer be the case-for obvious and appropriate reasons. However, an alternative system does need to be introduced. If the present or a future Government fail, for example, to stay within air pollution limits, it must be possible for sanctions to be applied and for that Government to be held to account-that is a core ingredient in any healthy democracy. Secondly, it is not clear that important principles, such as the “polluter paysâ€ principle or the precautionary principle, will be fully and meaningfully absorbed into UK law. If the individual regulations are to have meaning, those principles must be embedded in UK law. Finally, the Bill enables the Government to transfer regulatory functions from the EU to domestic bodies, but it does not make that obligatory, which seems to me to be an obvious weakness. I hope that the Minister will respond to my concerns, as well as the other issues that are raised today, and provide reassurances that they will be addressed either during the Bill's later stages, or in subsequent environmental legislation.
Today marks the 20th anniversary of the referendum on re-establishing the Scottish Parliament-not just “notionallyâ€ re-establishing it, I should point out to the hon. Member for Harwich and North Essex (Mr Jenkin). I voted in that referendum having just returned from the Erasmus programme. The re-establishment of the Scottish Parliament was backed by most of Scotland's parties-certainly by its progressive parties. Today we are about to see the biggest devolution power grab since that re-establishment, and it that will have an impact on the devolution process the likes of which we have never seen before. As someone who returned from Erasmus to vote in the referendum 20 years ago, I have been reflecting on the impact that this process will have on opportunities for young people, among others. The hon. Member for Richmond Park (Zac Goldsmith) rightly highlighted the benefits of European Union membership. It has benefited our rights; it has enabled us to build a broad consensus on the need to tackle environmental problems such as climate change; it has benefited universities; and it has torn down trade barriers. Tonight we will vote on a Bill that will take powers away from Holyrood and undermine the devolution process, and that is something that we cannot thole.
Will the hon. Gentleman give way?
Will the hon. Gentleman give way?
Ah, there we go! I give way.
The hon. Gentleman has mentioned several times now that this Bill represents a power grab; that is the new in-fashion statement from the Scottish National party. Can the hon. Gentleman name one power that the UK Government will grab back from Holyrood?
I will give the hon. Gentleman his due: at least he had the courage of his convictions and stood up; the rest of them took their time over that. On fishing, on agriculture and on energy, we were told that these powers would come back to the Scottish Parliament without touching the sides, so where are the full powers over fishing, agriculture, energy and education? They are being retained by this Parliament on the 20th anniversary of the devolution process. To return to my point, the MP I mentioned earlier said this:“The balance of advantage between Parliament and Government is so weighted in favour of the Government that it is inimical to the proper working of our parliamentary democracy.â€- That warning about powers such as Henry VIII powers was made in 1999 by the Secretary of State himself when he tried to introduce a Bill to deal with them. This is a hung Parliament. The Scottish Parliament was designed for a new kind of politics, and one thing I will say to Conservative Members-I hope they are listening-is that even when the SNP was elected with 47 seats out of 129, we had ground-breaking, world-leading action on climate change, free education was reintroduced, and the number of police officers was increased. Action can be taken in a Parliament of minorities, but for that to happen, Members must be willing to listen to those on the other side of the House. Excellent points have been made from the Conservative and Labour Benches, as well as by other colleagues. The challenge is whether this Government are prepared to listen. What we have seen so far is a Tory Government who want to turn their back on the EU and happily talk about a no-deal situation that would be devastating for jobs and the economy. This approach of ourselves alone against the world is not one that I can possibly endorse, and nor can my colleagues. We must reject this Bill. A new approach is needed, and that is why we will be voting against the Bill tonight.
One of the issues is that with environmental law, for example, there is currently a remedy of going to the European Court of Justice, but there is no replacement in the Bill as it stands.
Does the right hon. Gentleman agree that there have been a lot of arguments in the past about Henry VIII powers and about the Executive taking power away from Parliament, and that it has all steadily gone in one direction? The danger now is not only the consequences of this Bill and of the details of Brexit, but that if the House does not challenge this Bill and change it, it will be quoted as a precedent for years to come. I have no doubt that if the Labour party ever gets back into power, a future Labour Government will start lecturing a Conservative Opposition that there are clear precedents for taking powers of this kind.
The right hon. and learned Gentleman is, of course, correct that we have had some of these debates before. The criticism does not stop with the House of Lords Committee. The Hansard Society says that“the Bill will strengthen the...executive, not Parliamentâ€. Its report on the Bill says:“the broad scope of its...powers, the inadequate constraints...on them, and shortcomings in the proposed parliamentary control...will be...a toxic mixâ€. We have had regulatory Bills before, and many years ago, when I was first elected, I was involved in taking the Legislative and Regulatory Reform Act 2006 through the House. There was huge controversy about the powers contained in that legislation, and many Conservative Members who most vociferously defend the European Union (Withdrawal) Bill attacked that Act as a huge power grab. The response to the 2006 Act led to the setting up of a special scrutiny process for deregulatory measures, and the Hansard Society says:“Previous legislation, such as the Legislative and Regulatory Reform Act 2006, provides examples of ways in whichâ€the Government“could introduce safeguards into the EU (Withdrawal) Bill to tighten the scope and application of the powers.â€But there are no special scrutiny measures proposed in the Bill, even though its scope is far, far broader than the 2006 Act.
Will the right hon. Gentleman give way?
With consideration for other speakers, I will press on. In fact, most of the orders made under the proposed powers, far from being elevated into some kind of special sifting and debate procedure, will go through on the negative resolution procedure, with little or no debate. On one level, I sympathise with Ministers. The outcome of the Brexit negotiations is so uncertain-in fact, getting an agreement at all is not certain-that they want to confer on themselves the maximum possible leeway in legislating, but Parliament cannot take that view. It has been argued that the best way to raise the issue of executive authority is in Committee and not now, but we already know that the Government propose to give themselves a majority on all Committees even though they did not win a majority at the general election. There is no indication-in fact, the very opposite-that the Government are more likely to listen in Committee than they are now. Parliament's maximum moment of leverage to call on the Government to think again is not in Committee but now. We have been told that a vote against the Bill is a vote for a chaotic Brexit, which is a bit rich. There only has to be more than two Cabinet Ministers in a room to produce versions of a chaotic Brexit. When Ministers are pushing against one another, and when letters supported by junior Ministers are being circulated attacking the policy of the Government in which they serve, the Tory party is well capable of producing chaos on its own. We have a legitimate job to do in scrutinising the Government. To further that end, I will vote against the Bill tonight.
The hon. Lady is making a powerful point. When I was a Business Minister in the coalition Government, I negotiated with the EU Council on competitiveness to ensure that the EU undertook proper regulatory impact assessments of its regulations. That was a considered approach to make sure that stakeholders were consulted. Under the regulations proposed in the Bill no such consultation will take place, which is far worse and far more damaging than the situation under the EU.
I wish the EU had followed that mechanism all the time, then we might not be where we are now. The right hon. Gentleman's point shows precisely why we need amendments, which I was coming to. Last Thursday, the Secretary of State suggested that he would be prepared to agree to a sifting or triage process, so that technical decisions could be made swiftly but more important policy decisions can have proper scrutiny. The Opposition have not offered any alternative drafting, but that is the sort of amendment we need to see. I will be supporting the Bill tonight, because it is necessary and it needs to move to Committee. We need to make sure we put in place many amendments so that we provide for scrutiny, but this is not a time to just throw out the Bill, because history will not thank those who treat this as another game of political football.
The right hon. Lady is making a very thoughtful speech, but does she think that programme motions have been of benefit to the House?
It is a great honour to follow the right hon. Member for Derby South (Margaret Beckett). She made a very thoughtful speech. One point on which I entirely agree is that, as this Bill passes through the House, we can look at better ways to scrutinise secondary legislation in particular. It seems that the Government are right that they will have to use secondary legislation, but it does not mean that all Delegated Legislation Committees must look the same. We do not have to have a one-and-a-half-hour DL on a technical matter of no importance whatsoever. However, if there is a Committee of some importance, why not extend the hours? Any Member can speak in a DL Committee, so there are ways we can improve scrutiny. That is what the Committee of the whole House should do when it considers the Bill. I would be very surprised if the Bill finishes up in exactly the same format at the end as at the start. The Government would be well advised to accept reasonable amendments that improve the situation, but the principle of this Bill is quite simple.
On delegated legislation, the hon. Gentleman seems to think that it is okay if something is debated in Committee, but the truth of the matter is that the only motion that can be considered in a delegated legislation Committee is whether the Committee has or has not considered the matter in hand. In other words, if every member of the Committee voted against, the legislation would none the less come into law. That is the danger of relying on secondary legislation.
I think the hon. Gentleman would agree that if the affirmative mechanism were used, the whole House would vote on the matter, so I do not accept his argument. This Bill is about a principle: I think it is called the European Union (Withdrawal) Bill, and I think I introduced-
Will my hon. Friend give way?
Not for a moment, because on this particular point I think I am right: it is called the European Union (Withdrawal) Bill. I remember introducing a number of such Bills, or certainly speaking in favour of a lot of them. At that time, they were rather dismissed by the Government and we did not make much progress, so if I have an opportunity to support a Government Bill called the European Union (Withdrawal) Bill, as I do tonight, then I am going to take it, and I hope other Members do too. What the Bill primarily does is end European Union legislation and control over this House when we leave, while the second bit incorporates all EU laws into our laws-“retained EU lawâ€, it is called. It is quite right that in future we should look at all those laws and decide whether to improve, reject or keep them, but there has to be a mechanism when we come out to have all those laws in place or chaos will occur.
The hon. Member for Rhondda (Chris Bryant) raised a very important point in his intervention that has to be dealt with clearly on the Floor of the House. Personally, I am in favour of any compromise-any triage process, as suggested by my right hon. Friend the Member for Broxtowe (Anna Soubry) and others-but on this point my hon. Friend the Member for Wellingborough (Mr Bone) must be wrong. The House has a right and the powers, and historically it has been able to reject delegated legislation-otherwise what sort of Parliament are we in?-so he is making a wrong point.
I thought that was the point I made: that this House could ultimately reject a DL. That is clearly what happened: we vote on it. I remember, and we vote on them all the time-my hon. Friend the Member for Chelmsford (Vicky Ford) mentioned at least eight times that they had been annulled.
Under the negative procedure, which is referred to regularly in the Bill, it is entirely up to the Government whether to allow a debate and a vote at all, and in the last 12 instances where the House has demanded a debate and a vote, including on very important issues, they have granted them on only four occasions.
I entirely accept that point about the negative procedure. I want to move on to-
Will the hon. Gentleman give way?
I do not have time to take any more interventions. I must press on. There are so many-
No! Basically, this Bill is about the principle of ending EU control over this House and incorporating those laws. That is fine, and that is why every Member of the House should vote for it tonight. What they should then do is look in Committee, clause by clause, at how we are proposing to scrutinise, change and incorporate laws. I wholly accept that the negative SI procedure is probably not the best way of proceeding. Another thing that has been mentioned-the right hon. Member for Derby South brought it up, and it is probably what I wanted to talk about most-is programme motions. As a principle, I am against programme motions. I accept entirely the answer she gave me, which is that it was a lot worse before. However, she did not go on to say that it is great now, and I do not think it has been. There have been a lot of problems with the Government deciding programming and the timing of scrutiny. Now, this particular programme motion is one of the better ones, because the debate is eight days long, with eight hours' protected time each day. I am fed up of sitting here waiting for a debate, only to find that there is statement after statement, which reduces the time we have for that debate. Thankfully, we are not doing that this time, and if there is a need for extra time, the Leader of the House would be well advised to grant it. I was here at business questions on Thursday, and the shadow Leader of the House did not complain about the timetabling. Well, I must have been deaf, because I was listening out for it. She moaned about a lot of things, but she did not complain about the length of time.
She did.
Well, I will stand corrected if that is the case. Anyway, the point I wanted to make is that it should not be up to the Government to timetable business in this House. By fortune, I have a ten-minute rule Bill tomorrow that introduces a business of the House commission. If that Bill was law, we would not be worrying about all of this now, because timetabling would be decided by the House, with a commission putting its recommendations to the House once a week to vote on. So we are having a row about something when we do not need to. If only we had listened to David Cameron, the former Prime Minister, when he said in his “Fixing Broken Politicsâ€ speech-one of his best speeches ever-that we should have this House commission. It was, of course, also in the coalition Bible, and we guaranteed that we would have that House commission within three years of the coalition's coming into power. I do not know why that did not happen; I assume it just got overlooked. It would be quite wrong of me to say that the two Whips Offices were absolutely opposed to losing their power-it could not possibly have been that. All that I am doing tomorrow is, hopefully, reintroducing something that was the policy of the former Prime Minister, the Conservative party, the Liberal Democrats and the Wright reforms. If we had had that commission, all the arguments and worries on the Opposition side would have disappeared.
Will the right hon. Gentleman give way?
I will.
I share the right hon. Gentleman's concerns. I share his views, and would have campaigned with him to remain, but the simple truth is that the majority of those who voted-52%-voted to leave the European Union. On that basis, we must begin the process of doing so and must see it through, even if he and I do not agree with it.
I hesitate, because the right hon. Lady and I have agreed on much, particularly free movement. Her bark has been loud, particularly on the “Todayâ€ programme, but her actions in the days that followed those contributions have been far less loud.
Would the right hon. Gentleman like to take that back? Things such as getting a White Paper, which my right hon. Friend the Prime Minister said she would not give-that is what people like me achieve. The real opposition to much of this comes from those on the Government Benches, not on his.
I am not sure that the right hon. Lady really wants me to respond. The point is whether we can get beyond the partisan. I represent a constituency where many people are struggling. Our economy is likely to take a real hit as a result of this move. Trade deals are an aberration and are some years in the future. If we exit under World Trade Organisation rules, we are in for huge rises in tariffs, consumer prices and, potentially, inflation. For that reason alone, in the best interests of my constituents and many people across the country who do not have the privileges of most people in this House, I shall absolutely vote against the Bill. When we talk about the will of the people, let us remember the 48% who voted against this. Let us think about what they deserve: a Bill that does not grab powers from them; a Bill through which we have ample time to discuss all these issues; and a Department that actually understands the position of the 27 European countries, and faces up to the fact that we are going to have to pay. They do not want to be told that this is going to be easy-that the whole of the European Union cannot wait to do a deal with us. That is not what they recognise. For that reason, it is important that this House does not let this Bill go forward.
My hon. Friend is absolutely right to have rejected the proposition of the right hon. Member for Tottenham (Mr Lammy) that we should carry on fighting on arguments that were decided in this House some time ago, and is right to want to get on with making arrangements for the future. Does he agree, however, that elements in clauses 7, 8 and 9 need looking at in more detail, particularly when it comes to the use of statutory instruments?
I agree with my hon. Friend entirely, but today is not the day for those arguments. Arguments about technical matters-how things will be changed in the House, and whether that will be done using statutory instruments and the exercise of ministerial powers-are for Committee and subsequent stages of the Bill. The broad thrust of my argument on Second Reading is that this Bill is the only means by which we can deliver the result of last year's historic referendum, which was delivered by 52% of people. I know that some in this House would rather we ignored the voice of those people, but we do so at our peril. The whole issue of our fishing policy encompasses a lot of what was wrong with our membership of the European Union, which would not listen to us. The Bill represents a great opportunity for our coastal communities. I intend to deliver a good fishing policy for our under-10 metre fleet, which is particularly prevalent in Ramsgate, so I will support this Bill tonight.
Does my hon. Friend not agree that the Prime Minister, having been denied the mandate for the hard Brexit that she wanted, is using the Bill as another method of achieving that objective?
This Bill is utterly pernicious. It is dangerous, it is fundamentally un-British and it has at its heart a lie. It pretends to bring back power to this country, but it actually represents the biggest peacetime power grab by the Executive over the legislature, by the Government over Parliament, in 100 years. It allows the Government to drive through changes to any law by the simple fiat of a Minister. That includes the powers of the House of Lords, the date of the next general election, the composition of the House of Commons and the number of Ministers. In the most extreme instance of all, it allows Ministers to alter the very Bill itself. That is a dangerous spiral of autocracy. Some Members seem to think it is a compliment to refer to them as Henry VIII powers. I know that Henry VIII, in 1536, legislated to allow two MPs to come here from Calais, but on the whole the Tudor exercise was not a proud demonstration of democracy. These are clauses of which Erdoğan, Maduro and Putin would be proud.
I am very grateful to the hon. Gentleman for giving way and I am sorry to interrupt his flow of eloquence. Is he conscious of schedule 7, in particular part 2, and especially paragraph 6, sub-paragraph 2, sub-sub-section (g), in which it is made perfectly clear that it is only by affirmative resolution, and not the fiat of Ministers, that amendments to Acts can be made?
I am perfectly aware of all the measures in schedule 7, but I merely point out to the right hon. Gentleman that, since the Bill itself can be changed by the Government, that is one of the elements the Government can change. What happens, even under the affirmative process-this is the problem with secondary legislation-is that, because there is no opportunity to amend, the Government will say, “Take it or leave itâ€. They will then suddenly say, “There is a real emergency and you've got to take it, because otherwise there will be chaos.â€ That is the sword of Damocles that Governments always hold over Parliament when a clause hands matters over to secondary legislation.
I am doubly grateful to the hon. Gentleman for giving way. Will he withdraw his remark that it is by ministerial fiat, and resort instead to the argument that the drafting would enable the Government to exert some pressure on Parliament, which presumably he and his colleagues would resist?
No, I am not withdrawing it. The Bill, at several points, makes it quite clear that the Government will hold powers to bring in regulations under secondary legislation through the negative process. The whole point about the negative process is that the statutory instrument comes into law unless it has been annulled, and the only process by which it can be annulled is if the Government themselves allow time for us to debate the matter and to have a vote. I would be happy to trust the Government if in recent years-I do not know why the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker) is looking up at that point; he never used to trust the Government until he became a Minister-they had been happy, since 2010 or 2015, to honour the traditional doctrine of the House, which is that if the Leader of the Opposition demands a vote and a debate in this Chamber there will be one. They have, however, consistently refused to do that. Enormous changes to our law, affecting student nurses and every student in the land, and affecting benefits for all our constituents, have been driven through via secondary legislation. It should never have been used for such measures, without us ever being able to insist on having a debate or a vote. The worst of it, to which I have already referred, is that when we do have a debate, the Government get to decide whether it should be in Committee or on the Floor of the House. If it is in Committee, all we get is a motion stating whether or not we have debated the matter in hand.
Twenty years ago, almost to the day, I was involved in another bitterly fought referendum campaign in which both sides accused the other of exaggerations and even outright lies. The result was extremely finely balanced, our nation was divided and many were of the opinion that the Government of the day had absolutely no right to proceed with such a profound constitutional change on the basis of a tiny majority. I refer not to the EU but to the Welsh devolution referendum. There the similarities end. The day after the Welsh Assembly referendum, I did not see BBC reporters trawling the streets of Cardiff or Swansea for anecdotes about people who had allegedly voted one way and then changed their minds-I can well remember in fact that BBC reporters from Wales could hardly contain their delight-and we did not see business representative groups and trade unions whipping up fears about the future of the economy; instead, they embraced the opportunities. Those of us who had been actively involved in the campaign against the Welsh Assembly realised that, whatever we thought of the result, the people had spoken. Even though it was a narrow margin-much narrower than in the EU referendum-and on a much smaller turnout, we did not try to stop the process. We did not try to take the Government to court. In fact, we got involved in the shaping of Welsh Assembly standing orders through a body called the National Assembly Advisory Group. The First Minister of Wales and some of his colleagues in Parliament would do well to remember that. He and others have been complaining about a power grab and making accusations about undermining the Assembly-
Will the hon. Gentleman give way?
I will give way in a moment. I am coming to something the SNP said earlier. The only powers being grabbed are those being grabbed from Brussels and taken back to London. There is absolutely no grabbing of powers from Cardiff. Earlier, my hon. Friend the Member for Stirling (Stephen Kerr) asked the hon. Member for North East Fife (Stephen Gethins) whether he could name a single power being taken from Edinburgh, and he could not name any.
I am happy to give way to his colleague to see if he can come up with a few.
The hon. Gentleman is keen to draw parallels between the EU referendum and that which established the Welsh Assembly. The result of the EU referendum casts great doubt over the continuing human rights of 3 million people living in these islands. Can he name a single person whose human rights were threatened as a result of the Welsh referendum 20 years ago today?
Will the hon. Lady give way?
“Democracyâ€ and “the will of the peopleâ€ are terms often used and-dare I say it-abused in connection with leaving the European Union. I have been listening to this debate for many hours now, and I am puzzled by the arguments of those who support the Bill's progress. As has already been said this afternoon, we are here to debate not whether we leave the EU but how we do it. Over the past two days of debate, it has been eloquently proven by Members from both sides of the House that what is in front of us is deeply flawed, because it threatens to write into law a substantial loss of our parliamentary democracy and set an alarming precedent. It is therefore frustrating to be accused of undermining the will of the people if I do not support the Bill's progress. I will not support the Bill, because it threatens a fundamental principle of British democracy-the supremacy of Parliament and the division of powers-and gives sweeping powers to Minsters and bureaucrats. The right to make laws in this country was given to Parliament after many hard-fought battles.
Will the hon. Lady give way?
I have been in the House since 2001 and have, I dare say, manufactured a fair amount of indignation about the legislation of previous Governments, but things are different today. I respect the Opposition's arguments-they are absolutely right to raise them, and their concerns are valid and should be considered-but we are in the middle of a negotiation and my constituents constantly ask me, “What is going to happen?â€ We, as a country, are being pitted against our former partners in a negotiation and if it goes wrong, that will cost us billions of pounds and deny us access to markets. This is not the time for us to be dancing on the head of a pin about the details of delegated legislation. How many delegated legislation Committees have hon. Members sat through? Members will know about the countless rubber-stamping of EU directives. I have seen it myself, and the worst one was the directive about alternative investments. The impact assessment stated that it had a bill of £8 billion, but neither Front-Bench team seemed to think it at all important. Delegated legislation has been going wrong for decades. I will accept that the Bill may not be perfect, but it is right that we pull together at a moment like this-mid-negotiation-because there will be chances to put this Bill right in Committee. I rather agreed with the hon. Member for Bath (Wera Hobhouse) when she said that our constituents do not want to swap faceless bureaucrats in Europe for faceless bureaucrats in Whitehall, but they are not doing that; our bureaucrats have faces. We know who they are, and they are accountable to us.
As a former editor, may I suggest that the Brexit Secretary sits down over the recess in a dark or light room with my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke) to produce something that will go through the House more quickly and with more unity than this Bill?
I rather hope that the Brexit Secretary will concentrate on negotiating our departure rather than on sitting in darkened rooms, or perhaps that is what he is doing-who knows? Returning to the main thrust of what is going on, we need a unified, sensible piece of legislation, and we must support the Government, get the legislation through and then sort out our differences. Support for the sake of it is wrong, but it is absolutely the right thing at this particular time and at this particular stage in the legislation. It is what our constituents want and expect.
The hon. Gentleman makes light of the rights of each of us, of our constituents and, indeed, of EU nationals when he says that we are dancing on the head of a pin if we do not allow the legislation to go through tonight.
No, I do not think so. Delegated legislation is always difficult. There are so many statutory instruments to get through, but that has been true ever since I have been here. We have had countless pieces of rubber-stamping. However, I have taken great comfort from the Front-Bench team saying that there is a sunset clause and that the spirit of the law will not be changed. I appeal to the Labour voters in North Herefordshire. They were very few in the past, but their number has grown recently. They did not manage to mention the Leader of the Opposition at any stage during the election, but they are decent, patriotic people and they want to see our country winning, not bickering among ourselves. Please support this critical piece of legislation, but if hon. Members cannot support it, please abstain.
This is the second day on which I have sat listening to many good speeches on this topic, but I cannot help but feel that during some of them, irony sits heavily in the air; we have heard about “scrutinyâ€, “democracyâ€, “democracy of the peopleâ€ and “functioning democracyâ€, but where has democracy been for the past 44 years? Where has it gone over those 44 years? It has gone into the powers of a bunch of unelected Commissioners who tell us what to do.
Does the hon. Gentleman agree that none of those who are criticising the points he is making have brought forward, in the years I have been in this House, a reform of the process they now so wish to cling to?
I agree with my hon. Friend, and I will come to that very point.
And we could not change it.
As my hon. Friend says, even if those debates had happened, the legislation could not have been changed. Where were all these loud voices? Where were you all over the past 40 years? Why did you not question what was being imposed on our country and our constituents? Where were you?
No, I will not give way-absolutely not! I do not have time and I am enjoying myself. I am representing my constituents and my country. I am speaking up, at last, for Great Britain, and not for a bureaucracy that is going horribly wrong. The great thing is that when the Bill returns to the House, we can scrutinise it-we can do our job. That is what we are here for. The Scottish National party wants independence and to rejoin the EU. The EU would nail Scotland to the floor if ever it got the so-called independence that the SNP desires. SNP Members would rue the day, as they headed to economic ruin, trapped in the euro-if indeed the EU let Scotland have it. The Bill is good for our country. Ministers have not got it all right; I would be the first to concede that, and I am sure they would concede it, too. It can be debated and changed in Committee-of that I am certain-but a vote against the Bill tonight is a cynical ploy that our constituents, who sent us to the House, will not accept. I shall vote with the Government.
The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight. Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already commonâ€. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill. On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create-guess what?-yet more Henry VIII powers!
Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)-namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?
I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all. Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficienciesâ€, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms-for example, some sort of filter-but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government. We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government's assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead. With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA-or of lots of other federal places-attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.
I shall try again with the question I asked earlier. The hon. Gentleman talks about power grabs and the trashing of the devolution settlement, but can he tell me one power that the UK Government intend to grab back from Holyrood?
Today and last Thursday, a number of speakers on both sides of the House stated that this Bill is not about whether we leave the EU, but about how. That should be something on which we can all agree, although today we have heard speeches from those who clearly take a different position. For example, the right hon. Member for Tottenham (Mr Lammy) made it absolutely clear that he was fighting against leaving the EU at all. The hon. Member for Lewisham East (Heidi Alexander) made an equally passionate speech, saying that she was voting to stay in the European economic area, and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) started his speech by stating that he would not vote for the Bill this evening, and then looked for reasons as to why he would not do so, which is broadly the position of almost all his colleagues. If we look at the Bill objectively, surely everybody can agree that we are where we are, and that we must have arrangements in place that suit every organisation in this country, including the prospect of knowing what the law of the land is at the end of March 2019.
I am tempted to give way, but I will not because are so many other people wish to speak. Will the hon. Lady forgive me?
indicated assent.
I am so sorry, but I will not give way. That body would provide the necessary oversight that Members on both sides of the House, but particularly Opposition Members, are looking for to try to ensure that the right checks and balances are in place-as my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) mentioned-and we have the right use of statutory instruments-
This debate is about not if but how we leave the EU. I was elected to this House very recently to speak up for my constituents, not as a spectator. I want Parliament to take control, stand up for democracy and protect parliamentary sovereignty.
My hon. Friend is making a brilliant speech, but is the challenge of the Bill not this: we used to talk in this country about an elected dictatorship, but what is now being proposed is a barely elected dictatorship? Has she ever seen a bigger gap between a Government's mandate and the power that they seek?
Many of us have a beef not with the way in which the laws will be transferred from Europe to the UK, but with the way in which the laws will be treated afterwards. The sweeping powers that the Bill provides will make it possible for Ministers to abuse powers that they have not been given by the electorate. This House should have control of that, not Ministers by their gerrymandering in this Bill.
I am grateful to the hon. Gentleman for that intervention because it gives me the opportunity to mention the sunset clauses in relation to both clauses 7 and 9. I will not make Ministers' lives easy, because I note that there is no corresponding sunset clause in relation to clause 17, but it may well be possible to discuss that in Committee. We have the comfort of knowing, however, that clause 9 will stop once exit day has happened and that clause 7 will operate for two years thereafter. As I have said, I have had the pleasure of listening to two days of debate on this Bill, and the quality of debate has been excellent. There have been some very thoughtful suggestions about how the Bill can be perfected, and I have been emailed, as have many colleagues, by constituents with their thoughts on the Bill. In particular, I note the concerns about triaging SIs. I also note the contribution of my right hon. Friend the Member for Newbury (Richard Benyon) about infractions, and those of my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) and my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) about the Francovich rulings. I am sure that Ministers have listened to those points and will bear them in mind on this-let us face it-unprecedented legal course that we are taking. It is a very exciting time: it is not what I voted for, but we are in it and we have to make the best of it now. We must ensure the smoothest possible exit from the EU to our new place in the world. I will end with this point: in 2015, I stood on a manifesto commitment that I would support the Conservative Government in holding a referendum and then in honouring its result. Tonight, I will vote to repeal the 1972 Act and to start the smooth process of transition. It is a promise made and a promise kept. We in this House are often accused of not keeping our promises, but this is a promise that I feel morally and democratically obliged to keep, and keep it I will.
Is my hon. Friend concerned that the replacement of the European Environment Agency by national bodies with massive powers would also be handled in that way?
My hon. Friend makes an excellent point. We will not simply be able to cut and paste chemicals measures. REACH is the big regulation on registering, evaluating and authorising chemicals. It protects the public and the environment from hazardous substances and it is vital to British jobs, growth and investment. Our chemical industry is the second largest exporter to the EU after cars, selling £15 billion of chemical exports to the EU every year. Leaving REACH could cause market freeze and supply chain disruption to the industry. The Environmental Audit Committee heard from techUK and the defence industries how incredibly concerned they were about that. One in five UK chemicals companies represented by the Chemical Business Association are not waiting for regulatory certainty from the Government, and are already investigating opportunities to set up shop in other EU countries, harming jobs, investment and growth in this country. The Bill does not protect the citizen and it does not incorporate either the principle of EU law that the polluter pays or the precautionary principle. For those reasons, for the vast destruction of our environmental and social rights, I shall vote against the Bill.
It is good to follow the hon. Member for Wakefield (Mary Creagh), but I want to turn from sun kings and queens to what the Bill is about: giving the House the mechanism to begin the process of withdrawal from the European Union. Unfortunately, the hon. Member for Bishop Auckland (Helen Goodman) is about to leave the Chamber. I agree with some of the amendments she has suggested, but I would like to ask her why they have not been tabled. I will stand by the Bill.
The process is that amendments can be tabled after Second Reading tonight. We cannot table amendments until and unless the Bill completes Second Reading.
Will the hon. Gentleman clarify why his colleagues think it reasonable for the Government to argue that there should not be a border in Northern Ireland-Northern Irish citizens will continue to be able to claim Irish citizenship, which will allow them to become EU citizens-with special arrangements there, but not one of them is arguing for special arrangements for Scotland?
That is not in the Bill. There is protection for the Belfast agreement under clause 7(6). We can go through that, but Scotland is a completely different situation, as the hon. Gentleman well knows. Again, if we can complete Second Reading tonight, the Bill will go through subsequent stages, and we can get to substantive debates on immigration, trade, customs, agriculture and the issues that remain and leave voters in my constituency want us to tackle.
Does the hon. Gentleman not then agree with the Scottish Conservative leader, Ruth Davidson, who said on 7 September in The Spectator that the UK should stay in the single market?
Mr Deputy Speaker:“the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened.â€- Those were the words of Winifred Margaret Ewing, elected to the House of Commons 50 years ago this year, and more fondly known as Winnie and, to her EU friends, Madame Ecosse. To this day, Winnie is the only parliamentarian of these islands to have been a Member of the Scottish, British and European Parliaments, and she will be the only person who will hold that accolade. It is almost 20 years today since Scotland said yes to a Scottish Parliament with devolved powers under a settlement that stated that everything was automatically devolved unless it was explicitly reserved. Despite what was said earlier, those powers were not notional. As the First Minister of Scotland, Nicola Sturgeon, rightly said in her speech this morning, this Bill“threatens the very principle on which our Parliament is foundedâ€. In its current form, the Bill is a reversal of devolution. Although I am a pretty positive person, I am struggling to find light among the Brexit process. After a summer of meetings with businesses and trade bodies in my constituency and across Scotland and the UK, aimed at understanding their hopes and fears about Brexit, I find it hard to see good in any of it. The retail sector in my constituency employs a lot of EU nationals. Let me take the insurance and aviation sectors as an example.
As my hon. Friend knows, I have an airport and an important aerospace cluster in my constituency. Is she not concerned about the loss of open skies and the European Aviation Safety Agency? We might not be able to pass the engines, but perhaps that does not matter, because we will not be allowed to fly anyway.
I share my hon. Friend's concerns, and I am sure she shares those of the insurance sector, which cites aviation as a relevant example because national airlines based in any EU country require a range of specialist insurance cover. Most of that is a mandatory requirement for operation. The UK insurance market is the only location with the specialist aviation insurance knowledge and financial capacity to provide the full coverage for all the risks faced.
Will the hon. Lady give way?
I will not at the moment. I am going to make some progress. To put it simply, planes will not be able to take off, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) identified. There is concern that the UK Government might use clause 8 to trigger article 127 of the European economic area agreement, immediately ripping away the UK's access to the free movement of goods, people, services and capital. As the days pass, the fear and concern heighten. Frances O'Grady, the general secretary of the TUC, said this morning-she was adding to the list of Brexit superlatives-that the Conservative Government were headed towards a “kamikaze Brexitâ€. In a single act of complete recklessness, the Government are pressing ahead with this deficient Bill without carrying out a proper economic analysis of any economy across the UK. The people in businesses I have spoken to do not want to fall off a cliff before new trade deals can be agreed. They cannot afford to crash out of the EU or to fall back on WTO rules, which the CBI president said would open a “Pandora's boxâ€. The gap between any transitional period and the start of any trade deal is also a real threat. Agriculture, fisheries and the environment are just some of the areas devolved to Scotland that will be affected by the Bill. The Fraser of Allander Institute has shown that a hard Brexit could cost Scotland's economy and its GDP up to £10 billion and 80,000 jobs. That is almost the entire number of people in my constituency. The Scottish Government did try to work for a compromise, presenting their proposals in “Scotland's Place in Europeâ€, but they did not even receive a decent response.
Will the hon. Lady give way?
Not at the moment; I am going to make some progress. The former Prime Minister David Cameron did not allow his civil servants or advisers even to write anything down before Brexit, and the Brexit Secretary admitted to the Select Committee that there had been no proper assessment of the economic consequences if there was no deal. What a reckless and incompetent way to run a Government or a country! I know that some of the magnitude of this is hard to comprehend, but to go to the people of this country with no proper impact assessment and no proper detail is absolutely scandalous. The Conservative Government pledged to produce a repeal Bill to“allow a smooth and orderly transition as the UK leaves the EUâ€, but this Bill seeks to undermine the devolved settlements and offers no guarantees to the devolved nations on the protections of their powers. Michel Barnier told a press conference recently that there had been no “decisiveâ€ progress in talks with the UK at the conclusion of the third round of negotiations. While the Government are faffing about, time is not on the side of people, businesses and our industries. Perhaps even more damaging than the tardy approach to the negotiation of a transition is the admission that the Government have turned down countries wishing to strike trade deals after Brexit because they-the Government-do not have the capacity to negotiate them. Furthermore, since the Government's approach to immigration was leaked, there is now a real risk that the transition period could be under threat. Those in the legal profession have also raised concerns. Lord Judge, the former Lord Chief Justice, has warned that Parliament faces a legislative tsunami without the time to scrutinise legislation properly.
My hon. Friend prays in aid Lord Judge, but it is fair to say that he is not the only senior magistrate to have problems with the Bill. Referring to clause 6, Lord Neuberger, the outgoing president of the Supreme Court, has said that if the Government“doesn't express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for...making the law when parliament has failed to do so would be unfair.â€He is right, is he not?
Yes, he is. The Government had to be dragged through the courts even to give Parliament a say on the triggering of article 50. What hope have we that we will be able to scrutinise properly the 19,000 laws and regulations that will be coming back from the EU? Last week the Scottish Government announced an ambitious and inclusive programme for government that put carbon capture back on the table after the failure of the UK Government in that regard, and committed to establishing a Scottish investment bank.
Will the hon. Lady give way?
Will the hon. Lady give way?
The UK Government should be delighted, but what have they been doing? They have been doing Brexit-just Brexit, and nothing else-and they cannot make progress with that. That is what doing the day job really looks like, and as we get on with the day job in Scotland, Westminster will be bogged down in nothing but Brexit.
Will the hon. Lady give way?
Thank you, Mr Deputy Speaker. This Bill threatens the very foundations and transparency of our democracy. There are voices of agreement and consensus around the Chamber, and it is incumbent on us to work together when we can find agreement, but the Bill, and the Tory Government's antagonistic approach, give little space and opportunity for any collaboration. With no clear answers to the issues of EU nationals' rights, with the charter of fundamental rights and single market membership under threat, and with no detailed economic analysis of the effect of the UK's leaving the single market, the Bill is a wrecking ball for British democracy and the cross-party working and consensus that created the Scottish Parliament. The Government cannot hide behind this “what the people voted forâ€ line, because the reality is that no one really knows what they voted for. There was no White Paper, there was no positive proposition, and there was no detail-nothing was written down. Many who voted for Brexit are now full of regret and frustration because they were sold a pup. We will not stand by and support this Bill. We will not give it a Second Reading, because two decades after Scotland voted for a Scottish Parliament, and giants of Scottish politics such as Donald Dewar and Winnie Ewing ushered in a new era of positivity that has benefited everyone in Scotland, the Bill is the biggest power grab since devolution. We in the SNP will not stand by and allow Scottish democracy and our Parliament's powers to be eroded.
Will the hon. Lady give way?
I am so sorry; I have been told that I need to crack on because of the time. I do apologise. The Bill allows for an orderly exit from the EU. A vote against it is a vote for a chaotic Brexit, and such a vote would be irresponsible and undemocratic. That is not what the country voted for. Our job as parliamentarians is to deliver a smooth exit from the EU. I will be supporting democracy and respecting the will of the British people by supporting the Bill tonight.
The hon. Gentleman always makes good arguments, but is he actually telling us that we should just continue to accept European directives over which we have absolutely no say whatsoever? At least we can elect and change the Government here.
The Bill asks us to transfer to the Executive what the hon. Gentleman considers a flaw without this Parliament having much of a say in what may happen. There are good reasons to oppose the Bill on the basis of clause 9 and the lack of a meaningful vote in Parliament-the Bill would allow the Government to get around that. To continue the school metaphor, the Bill is not only unsatisfactory and in need of improvement, but wholly inadequate. The Government need to go back to the drawing board and rethink their approach. There is no mandate for a hard, cliff-edge Brexit or for shredding long-won relationships with the other 27 countries of the European Union, nor is there a mandate for a hard transition. There is certainly no mandate to hand the powers in the Bill to a minority Government and a caretaker Prime Minister. I hope that my colleagues and concerned Members on both sides of the House will vote against the Bill. Not to do so would give the Government a strong signal that they can get away with anything they like.
Clearly we want to ensure a reasonable win-win trade deal with the European Union, but is my hon. Friend aware of reports that, if we fail to get that deal and we go to WTO terms, our Exchequer will benefit by £13 billion a year from the taxes charged on imports from the European Union?
My hon. Friend makes a powerful argument. There are those who say that we have to beg Europe for a deal. Last time I looked, the European Union had a £100 billion surplus on trade in goods with the United Kingdom. If there were tariffs, European exports to Britain would be hit by £13 billion, whereas our exports to Europe would be hit by only £6 billion. That shows why it is in Europe's interest to do a free trade deal, and why it would be an economically illiterate act of self-harm by the European Union not to want to do a trade deal. If anything, a trade deal is more in the EU's economic interest than it is in ours. Those are the hard numbers, and that is where the House should be focusing. If we want scrutiny, we should scrutinise how we can reduce the divorce bill, ideally to nothing. We should scrutinise how we can make sure we have a positive relationship with the European Union in the years to come, how we can have free trade, how we can have trade across the rest of the world, and how Britain can be positioned to grow so that our sons and daughters can have the kind of future that they expect us to build for them. That is why we need to approach this positively and thoughtfully, and it is why we need to apply scrutiny to the things our constituents care about, rather than process.
When a Government come to a Parliament and say, “Give us more powers, or there will be chaos,â€ democrats should be worried. Over the years, when a Government have said, “Give us more powers, or there will be chaos,â€ they have acted like dictators. I am not saying that the Government are a dictator, but they are doing what Lord Hailsham said: they are acting like an elective dictatorship. That is why they are, through this Bill, undermining the very weak concept of parliamentary democracy that we have retained in this country.
Does the right hon. Gentleman agree that it is even worse for the Government to behave as an elected dictatorship, given that they have lost their majority?
I am grateful to my hon. Friend for giving way on the point about the London economy and EU nationals. Does she agree that an increasing number of EU nationals are very concerned, not just about the cost of their citizenship but about the constant changing of the goalposts by the increasingly incompetent Home Office?
I agree with my hon. Friend's point. There are 17,000 EU nationals who live in my constituency, and they constantly come to my surgery because they are worried about the half-baked practice papers that are being put in front of them. In terms of the London economy, which my hon. Friend also mentioned, by 2020 a quarter of the GDP of the entire country will come from London alone. We have 800,000 private sector businesses. The Bill gives Ministers the power to modify retained EU law, and clause 11 stipulates that such powers should not be handed to the devolved authorities. With the EU charter a thing of the past, London's EU nationals will, as my hon. Friend suggests, have the right to question what their future holds and what rights will be guaranteed. An honest conversation is urgently needed on post-Brexit immigration arrangements and migrant protections for the huge population of non-EU citizens in London, and the Bill does not provide that. A lukewarm commitment to seek consent from devolved bodies will not do. Serious steps must be taken to mitigate the disproportionate impact that Brexit will have on the city where my constituency is based. I will proudly vote against the Bill today with my Labour colleagues. The display put on by my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) last Thursday revealed this Bill to be everything that campaigners warned it would be. It is a shoddy power grab that disrespects the democratic traditions of our country and throws hard-fought rights into total jeopardy, and the Government should be ashamed of themselves for introducing it.
Will the hon. Lady tell us in what way the House of Lords is more accountable to the democratic populace than the European institutions?
I would, very briefly, like to conclude. Thank you very much, Mr Speaker. The pause, if anything, has given me new breath and I shall seek to expend it. I was saying that the Government have introduced the Bill with the words, “Trust us, we'll put it right.â€ Nowhere has the Bill been more eruditely or expertly criticised than on their own Benches by the right hon. and learned Member for Beaconsfield (Mr Grieve), who unfortunately is not here for these latter stages. He has exposed it as being a shoddy Bill that should never have been brought forward. We say very clearly to the Government tonight that, as far as the negotiation goes, a transitional arrangement is vital. Soft terms are equally important for our manufacturers, traders and financial companies-everybody on whose livelihood the wellbeing of this country depends. If we go for the mess the Government are currently promising us, I regret to say that we will have a very hard Brexit and the citizens of the whole country will take a very hard economic knock to their wellbeing. I want to avoid that, so I say take the Bill away. Bring back a corrected Bill that is decently presented and does not try to wrench power away from Parliament for ends that we cannot yet even specify. Bring it back in a shape fit enough that we could be justified in voting for it.
Does my hon. Friend agree that as a nation we need to learn to respect the outcomes of referendums? We have had two major referendums in the UK, but we seem repeatedly to fail to respect the will of the British people.
My hon. Friend's excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.
Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?
The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers. To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents-
On a point of order, Mr Speaker.
I merely ask for guidance on the relevance of the hon. Gentleman's speech on greenbelt and the Scottish Government to the topic of debate.
Thank you, Mr Speaker. Many of my constituents in Dunblane and Bridge of Allan are rightly angry at this power grab by the SNP. That is one of many such examples. I have no hesitation in telling the Government, whom I am proud to support, that I want them to get on with Brexit. It will bring opportunities, and we must make the best of them. I want to get on with those free-trade deals across the world. We already know that customers globally have an insatiable appetite for Scottish food and drink, including Scottish salmon, and since Stirling is now the UK's centre of excellence and innovation in salmon, and finfish aquaculture in general, I declare a vested interest. Those in the House who gleefully seize on every statement by EU negotiators, at the supposed expense of Her Majesty's Ministers, should consider how their antics appear to the voting public. We must work together across parties to get the best deal for the British people, and I have the utmost faith and confidence in my right hon. Friend the Secretary of State for Exiting the European Union and his ministerial team to do just that. We must be, among ourselves, united. The Bill represents the best kind of pragmatism, for which this country is rightly renowned around the world. It will efficiently allow us to leave the European Union, it will allow our devolved Administrations to make more decisions about the lives and livelihoods of the people whom they serve, and it will allow us to have a statute book that functions on the day we leave the European Union. I celebrate its British pragmatism.
I agree with my hon. Friend that clauses 7, 8 and 9 are Henry VIII clauses, enabling Ministers to repeal and replace elements of the statute book at will and implying that our Parliament will not be able to take back control. It is clear that, rightly respecting the British public's decision, we will be leaving the EU because article 50 has been triggered, but does my hon. Friend agree that, as it stands, the Bill is fatally flawed because it amounts to a power grab by Ministers?
My hon. Friend is absolutely right that it is fatally flawed, and that is why I will vote against it with hon. Friends in the Lobby tonight. I will simply never be able to trust Tory Ministers with things like workers' rights, environmental protections and consumer rights. Let us take workers' rights as an example. The Prime Minister has promised to retain all our workers' rights as long as she holds office. In light of recent events, I hardly think that is particularly comforting, but in case we have any other doubts, let us just see what the then Tory Employment Minister, currently the International Development Secretary, said during the referendum campaign. She gave a speech at the Institute of Directors on 17 May 2016, about a month before the referendum. What does she want to do? To quote her, she wants to“halve the burdens of the EU social and employment legislationâ€. That is what the Tory Employment Minister said at the time of the referendum. It is no surprise that the Tories cannot be trusted now.
Did my hon. Friend see last Tuesday's Order Paper, which listed a whole bunch of private Members' Bills tabled by Brexiteer Conservative Members, including a Bill to take away the working time directive?
I am grateful to my hon. Friend for drawing attention to that, and it simply reinforces the case we are making: that Tory Ministers simply cannot be trusted with powers of this nature. We have also frequently heard the argument about the need for legal certainty, but the Bill as drafted does not provide that legal certainty. What guidance does it give to judges post-Brexit as to how they are supposed to interpret the law that originated from the European Union? Absolutely none. The idea of a preliminary reference to the European Court is of course no more, because of the red line on the ECJ. That is completely gone. The remedy that citizens once had to go to the European Court is also gone. So the idea that, post Brexit, the Bill will assist our constitutional arrangements and provide clarity is simply wrong.
No, people will not be able to go to the ECJ-the hon. Gentleman is right about that-but they will be able to go to the British Supreme Court, just down the road from here, where decisions that affect them and their countrymen will be taken by British judges according to British law. What is wrong with that?
I have nothing against British judges taking decisions. What I am talking about is the failure of this Bill to provide clarity about how the law now will be transposed into the law then. Let us talk about a judge down the road who is faced, for example, with a citizen demanding a remedy of holding the Government to account for failure to deal with pollution. They would previously have had a right to go to the European Court. What will be their right under the Bill? The Government have absolutely no idea. Let us have a Bill that gives that clarity post Brexit, which this Bill manifestly fails to do.
Will the hon. Gentleman give way again?
No, I am not giving way again; I have given way three times, and many Members want to speak in this debate. Let me summarise by saying this: the Bill is shoddy, and undermines the parliamentary democracy that it was meant to enhance. It is not worthy of support, and I urge colleagues not to support it tonight.
Will the hon. Gentleman give way?
I will not. Words such as “the Minister may make regulationsâ€ are littered throughout the Bill, and clauses 7, 8, 9 and 17 produce unprecedented levels of power for the Ministers on the Treasury Bench. We are to understand that they have been in listening mode today, but when asked either by Government Members or by Opposition Members to address some concern not once have they intervened to do so. They have sat quietly, passing notes-I can only presume to the Government Members who delivered their whipped speeches so wonderfully-instead of making a contribution to the argument.
Will the hon. Gentleman give way?
No, I will not give way. We also have a programme motion that seeks to allow 64 hours of debate on what Government Members have described as one of the greatest constitutional changes in their lifetime. The money resolution seeks to allow any amount of money to be spent by Ministers if they deem it necessary.
I will give you one last chance.
No, I am not going to take it. The ways and means resolution allows for “any taxationâ€. I thought the Conservative party was opposed to general taxation, but its Members are voting this evening for taxation for the sake of paying for a Bill that they will not allow to be scrutinised in this House. We are elected by our constituents as equals to have a say on the future of our country once we leave the European Union. No seat delivered a greater leave vote than mine. My constituents made their voice clear and I respect that, but they sent me here to get the best deal for them. I will be denied that right if I vote for this Bill's Second Reading this evening. The leave campaign talked about taking back control, but this Bill takes control away from Parliament. We will be relegated to observers in something that we have been told is the greatest constitutional event of our lifetimes. I will be joining my colleagues in voting against the Bill's Second Reading, because it is not what my constituents want, it is not what I came here to do, and I refuse, like my hon. Friend the Member for Lewisham East, to vote myself out of a role in the Brexit negotiations.
I have read them.
The hon. Lady should know, then, that the Bill expressly prohibits these powers being used in any way to interfere with human rights law. She will have seen that the Bill expressly precludes her concerns. The Scottish National party is going into paroxysms of apoplexy at the merest hint that London might exercise even a smidgen of the powers currently exercised in Brussels. I have not heard a single word of protest in the two years I have been a Member about those self-same powers being exercised in Brussels. Where were the SNP's shouts of indignation then? Everyone seems to agree that the Bill is necessary. No doubt there are points of detail that can and will be improved on, but anyone who is serious about implementing the British public's decision should vote for Second Reading this evening.
I begin by trying to find a bit of consensus and agreement across the House. We are all basically agreed that we need to improve the Bill in Committee. Everyone seems to suggest that lots of amendments are required to improve this legislation. I may have inadvertently misled the House last Thursday when I broke the crushing news that only eight days will be available in Committee, because actually only seven days will be available. That is because we are going to lose four hours out of the eight in days five and eight. So we will have seven days to rewrite the whole of the law system of the United Kingdom, whereas 41 days were given to the Maastricht treaty, 29 were given to the Lisbon treaty and 21 were given to entering the Common Market. We will have only seven days for this great repeal Bill-what an absolute embarrassment for this Government. They had better come back with a proper programme motion to give this House sufficient time-
First, let me make it clear that people in my constituency voted leave in the referendum, but they did not vote to risk the regulations and protections that they have to safeguard them. I want to talk about not clauses and regulations, but practicalities. My constituency has suffered serious problems arising from two landfill sites. Last year, we had three months of-not to put too fine a point on it-stench from one of the sites. The year before, we had a serious litter escape that blighted the local rural landscape. The House will not be surprised to hear that many of us want greater environmental controls, not only on landfill sites, but to protect our rivers, air and natural environment. My constituents are worried about and want to retain all the employment and health and safety rights that they have under European regulations. It is crucial that Members of this House have the opportunity to examine the process of bringing those regulations into domestic legislation and how they are to be carried forward. In its reliance on secondary legislation, the Bill takes away the House's ability-the ability of all us Members-to ensure that existing protections remain. I want to make sure that not only environmental but other protections from European legislation remain; if they will not, I want to be able to raise those issues with the Government and in the Chamber. Government statements have said that they are going to transfer all regulations-everything is going to be okay, and it is all going to be incorporated into UK law-but as more than one Member has said today, the devil is in the detail. It is that detail that we need the opportunity to deal with. To use another well-known phrase, fine words butter no parsnips. The Government have come forward with fine words, but we need them to come forward with practical mechanisms to allow the proper scrutiny of regulations in this House, and they must do so.
Does my hon. Friend agree that it would be incredible if the Scots Tories voted for this Bill to take powers away from Scotland, when even their leader, Ruth Davidson, says that this could do great economic harm to the UK?
I absolutely concur with my hon. Friend. I say to colleagues opposite: do not let yourselves be played for fools. It is quite clear that there is no intention to devolve. The reason why we warn about this Bill being a danger to devolution is that it is against not just the letter, but the spirit of the Scotland Act 1988, which achieved devolution.
I thank the hon. Gentleman for giving way. Will you tell the House what powers will be taken away from Scotland with this Bill? Will you detail the powers that we are taking away-
I find it incredible-Members on the Government Benches have had the answer to this question on three occasions. The point is that there is an opportunity in this place, in this month, in this debate to transfer powers from Brussels to Holyrood, and it is not being taken. Government Members invite us to trust them, but I fear that we cannot do so; if we could, they would have made clear their intention in the Bill. That is one reason why I will vote to decline giving this Bill a Second Reading tonight.
I ask the hon. Gentleman to please sit down, as time is very short. Finally, many Members have stood up and said how their constituents voted over Brexit. Let me put this on the record: the people who sent me to this place to speak on their behalf voted by 74% to retain their European citizenship and against the process in which we are now engaged. The people of my country voted by 62% to retain their European membership. We were told in 2014 that the independence referendum was not a matter of Scotland dissolving itself and its citizens becoming part of another country. It was about a political union between Scotland, England, Wales and Northern Ireland. Within that Union, according to David Cameron, the views of Scotland would be respected. I call now for that respect to be shown to Scotland and to the Scottish Government. I know that the UK will leave the European Union-that much is certain-but what happens next must be different in different parts of the United Kingdom; it must be different in Scotland, so that Scottish interests can be protected. I say to the Conservative and Unionist party in Scotland: you may have a majority in this vote, but you are alone tonight in Scotland in letting this process go through.
Does my hon. Friend agree that the Government did not want us to debate Brexit originally? It took a court case for article 50 to be brought to this place, so we should not trust this Government, because they have been dragged kicking and screaming every step of the way.
It is a pleasure to follow my hon. Friend the Member for Nottingham North (Alex Norris). As I said in the general election campaign and since to my constituents, I respect the result of the referendum, but this Bill is not about whether Britain leaves the European Union. It is about how we leave it, what role Parliament has in the process and how we safeguard all our vital rights and protections as we leave. I believe that Brexit must not lead to any drop in those rights and protections and that the power to decide them should be brought back to Parliament. In fact, bringing powers back to Parliament was one of the major arguments of Brexit's proponents. In March 2016, the Foreign Secretary announced his decision on how he would campaign in the referendum, saying:“Sometimes the public can see all too plainly the impotence of their own elected politicians... That enrages them... Democracy matters... At a time when Brussels should be devolving power, it is hauling more and more towards the centre, and there is no way that Britain can be unaffected.â€Well, we have not been unaffected. In fact, the Government are now looking to our decision to leave the EU as an excuse for far greater centralisation of power than we have had for almost 500 years. The Bill would put huge and unaccountable power into the hands of Ministers, sideline Parliament on major decisions and thereby put our crucial rights and protections at risk. Members should not just take my word for it.
Does my hon. Friend agree that the recent case of the Government acting illegally over employment tribunal fees is an example of how they cannot be trusted to act legally and justly for this country, and why Parliament needs to scrutinise them?
DUP Members' starting point on the Bill is, “Does it help us deliver the will of the people of the United Kingdom to leave the EU?â€ We believe that it does. We believe that it is, in fact, an essential building block. I have listened to the arguments that have been made today. Some Opposition Members-the hon. Members for Bath (Wera Hobhouse) and for Cambridge (Daniel Zeichner) and the right hon. Member for Tottenham (Mr Lammy)-have made it quite clear that their reason for opposing the Bill is that they do not want to leave the EU. If they had stopped there, I could have understood their argument, but it is rather ironic that they go on to say how undemocratic the Bill is when they are quite happy to stay in the EU with directives and other laws going through without any reference to this House. In fact, 20,000 have gone through, yet those Members want to continue that.
I am very grateful to the hon. Gentleman for allowing me to interrupt his rhetoric. There is one critical point that I would like him to address, and that is that the Bill is not going anywhere without the legislative consent of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. We have no Assembly in Northern Ireland, so how will the Government get legislative consent?
The fact that we do not have an Assembly in Northern Ireland might make it easier for the Government, but we will leave that aside. The other argument that has been made is that the Bill is flawed and people want changes, yet the only way of getting them is to allow it to go to the next stage where the Minister has already made it clear he will consider amendments, provided that they are not designed as wrecking amendments. May I make something clear from our point of view? We do not want to give the Government carte blanche to do whatever they wish. First, that is why we wanted to leave the EU. Secondly, we have had some experience of that in Northern Ireland. During the period of direct rule, decisions about the laws in Northern Ireland were made by Orders in Council in this place, which could not be amended. Of course, that sometimes led to bad law. Arguments have been made against the Bill, claiming that it is a power grab. It is quite clear from what Ministers have said, from what the legislation says and from the restrictions placed on Ministers that that is not the case. First, it enables EU law to be brought into the sphere of this Parliament where eventually, if it is not appropriate, it can be amended through due process. Secondly, Ministers have made it quite clear that the powers in this legislation will be limited. Thirdly, they have made it clear that they will be only for technical amendments and that there cannot be changes, for example, that create criminal offences, change human rights, introduce new tax powers and so on. There are limits on what Ministers can do.
Does the hon. Gentleman agree with the House of Commons Library that in spite of what he has said it is difficult to ascertain how the content of the Bill can be regarded as any limit on the scope of the powers given to the Government under clause 17?
Of course there are limits, and the ultimate limit is that we have heard speeches from Government Members today, and a considerable number of people, not just on the Opposition Benches, have made it quite clear that they perceive dangers in this Bill and would not give the Government a free hand. If Ministers tried to overstep the promises made on the Floor of the House and the limits on the face of the Bill, we can be sure of one thing: it will probably not be Opposition Members who stop Ministers doing that but Government Members. That is the ultimate brake on Ministers who try to abuse the powers that are being given to them.
Reference was made earlier to the Lisbon treaty and, like me, as he was in the House at the time, the hon. Gentleman will remember debating it night after night. There is a fundamental difference between that and the Bill, in that the Bill can be amended in Committee or on Report, whereas we could not change a single dot or comma of the Lisbon treaty.
Of course. That is the flaw in the argument of Opposition Members who have said that this Bill is flawed and therefore ought to be rejected tonight. If the Bill is flawed, the place to change it is here when it comes back for debate and amendment in Committee. That is the real test of whether people want an effective Bill, or no Bill because they do not want us to leave the EU in the first place. Let us consider the impact of not having the powers in this Bill. First, we would now be gummed up for the next number of years in trying to get the legislation through. Secondly, there would be no certainty for businesses. I have heard people say here so many times, “We need certainty.â€ Well, the one way of having certainty is to transfer EU law into UK law so that there is a framework. Lastly, the Bill will enable Ministers, when they go out to negotiate our free trade deal with the rest of the EU, to ensure that we start from a basis of compliance and equivalence.
The hon. Gentleman talks about the charter of fundamental rights. What is wrong with our Supreme Court, which is one of the most respected judicial systems in the world, providing those very same rights?
There is nothing wrong with our Supreme Court, but what better than to have an additional protection? I think that the hon. Gentleman makes a ridiculous argument. My next point is about safeguards for the current statutory instruments. Much of EU law has been brought into UK law as statutory instruments. Those statutory instruments are underpinned by EU law, which includes an ability to fine Governments for overstepping that law. If EU oversight is removed but the statutory instruments continue to exist, they will be weak to amendment through the negative procedure. That puts people's rights to things such as TUPE and the working time directive at risk. Clearly, therefore, those statutory instruments should have additional statutory underpinning such that they cannot be removed using the negative procedure.
Does my hon. Friend agree that we should not trust the party that refused to implement the social chapter at all, with all its rights at work that come from Europe?
I agree. The Bill also- I wanted to move on quickly. The Bill also fails completely to mention or touch on how some of the soft-law mechanisms will be brought into the UK framework, such as the open method of co-ordination. It does not even mention that area of EU co-ordination. We will clearly want to adopt significant parts of it, but the Bill is completely quiet about it. Of course there is a need to give Ministers certain powers, but even the emergency powers provided during the second world war were not powers for Ministers to spend unfettered amounts. This Bill gives Ministers the power to spend such amounts and gives them unheard-of powers. It is not a democratic Bill, and it cannot be classed as bringing power back to this country or to this Parliament. Clearly what we need to do tonight is to vote against this Bill. We need to send it back and get the Government to give us a decent Bill that will preserve our democratic rights for our people and for our Parliament.
On the position of Scottish Conservatives on devolution, I thought that Scottish Tory MPs would be interested in some breaking news. The Scottish Conservative leader, Ruth Davidson, has said on the BBC in the past hour that she is“not flying the flag for Brexitâ€, and would in fact vote again for remaining in the EU. I would like to hear what my hon. and learned Friend has to say about that.
My hon. Friend makes my point for me. The point I was about to make is that 20 years ago in Scotland, people from all political walks of life voted for the devolved settlement. It is the settled will of the Scottish people. The question for the 12 new Scottish Tory MPs is: will they make their presence felt in this Parliament, and will they protect the democratic will of the Scottish people, including their own constituents, who voted for devolution 20 years ago by 75% and voted to remain in the European Union by 62%? Tonight is a test of their mettle. Will they represent their constituents' views? Will they defend the devolved settlement in Scotland? Will they follow what their leader in Scotland, Ruth Davidson, has said, or will they troop through the Lobby like lobby fodder to undermine the settled will of the Scottish people and their constituents?
I have cut down my speech, because it is almost the witching hour and the Brexit Minister needs to weave his magic. I represent the town of Hartlepool and the outlying villages. I have about 96,000 constituents, and in the EU referendum, of those who voted, more than 70% voted to leave-the highest percentage in the north-east. Clearly, the vast majority of people in my constituency want Brexit. It is my duty, as their MP, to reflect that opinion, but I believe it would be a dereliction of that duty if I voted to give Ministers executive powers to implement changes to complex and important regulations without recourse to scrutiny by Parliament. Despite all the rhetoric and spin, I do not see voting against this power-grab Bill as blocking Brexit-far from it. As a former union official, I know that if you allow the other side to have it all their way in negotiations you may as well not be in the room. That would not be acting in members' best interests. I believe I am acting in my constituents' best interests by voting to protect the right to hold the Government to account during the Brexit process. To do otherwise would be unacceptable and disrespectful to my constituents.
I give way to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke).
I want to come on to that point later, but I first give way to the right hon. Member for East Ham (Stephen Timms).
I invite the Secretary of State to respond to the criticism of his party colleague, the right hon. and learned Member for Beaconsfield (Mr Grieve), who is surely absolutely right to describe this as an “appalling monstrosityâ€ of a Bill, which the House, frankly, should throw out.
That is a not a verdict with which I agree. Some of the criticisms of the Bill have been exaggerated up to and beyond the point of hyperbole, and I will seek to explain why. In concluding my comments about why the Bill is needed, I want to stress that the time available to us under the terms of article 50 is limited. We must assume that in March 2019 this country will leave the European Union. That will be the deadline, and therefore by that date we need not only to have primary legislation enacted, but to have established the new regulatory bodies. We will need to have given effect to the secondary legislation that is proposed under the defined powers laid out in the Bill. Several right hon. and hon. Members have said, “Yes, certain rights may be being preserved, but what about the general underlying principles of EU law?â€ As I said earlier, when we leave, the treaties will cease to apply to this country, but under the Bill, the general principles of European law, as recognised by the Court of Justice before exit day, or as embodied in extant European legislation, will be retained in United Kingdom law for the purposes of interpreting retained EU law. Existing sources of rights and domestic rights of action will continue to operate in United Kingdom law undisturbed by the Bill. That includes rights such as the right to equal treatment and non-discrimination. Similarly, notwithstanding our exit from the EU, individuals will continue to be able to challenge secondary legislation and administrative action under our domestic law by way of well-established grounds of judicial review. To take two important issues that have been raised, all the rights and remedies available under the working time directive or the Equality Act 2010 will remain in force, but they will be enforced through the United Kingdom courts-ultimately, our Supreme Court-rather than through the European courts.
I wonder whether what my right hon. Friend says can actually be correct. The feature of the Bill is that it removes the right of challenge for breach of the general principles of EU law. As a consequence, rights that currently exist and are exercised-indeed, were exercised by our right hon. Friend the Secretary of State for Exiting the European Union-will in future not be available. That is an important point that the Government will have to consider during the passage of the Bill.
For the most part, those rights are used when they are given effect through specific items of European Union legislation, rather than in the abstract. My right hon. and learned Friend makes an important point, and it is true that after exit it will not be possible for an individual to bring a free-standing claim, or for the courts to quash an administrative action or disapply legislation on the grounds that it breaks one or more of the general principles of European law, except as those principles have been preserved by the Bill-which will be the case if those principles have been given effect through a specific piece of legislation. That position flows logically from the decision by the electorate to leave the European Union, because that does involve separating the United Kingdom's legal order from the European Union's legal order. The issue of devolution has been the subject of much debate among Scottish Members of Parliament-
I am grateful to the Secretary of State for allowing me to intervene and help him with the general principles of EU law, which are respect for human rights and the principles of proportionality and non-discrimination. Those are principles that we in this country should be enormously proud of and embrace, instead of setting them aside. The Bill, in schedule 1, excludes anyone from relying on those general principles before a court, tribunal or public authority.
It strikes me that there have been constructive comments and suggestions from a range of Members, including my right hon. and learned Friends the Members for Rushcliffe and for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Broxtowe (Anna Soubry), my hon. Friend the Member for Totnes (Dr Wollaston), the right hon. Member for Birkenhead (Frank Field) and the hon. Members for Vauxhall (Kate Hoey) and for Blackley and Broughton (Graham Stringer). Between Second Reading and Committee, the Secretary of State for Exiting the European Union and his team intend to discuss those suggestions further with colleagues on both sides of the House. We accept that we need to get the balance right-for example, between negative and affirmative procedure and between debates in Committee and debates on the Floor of the House-and, as my right hon. Friend the Secretary of State for Exiting the European Union has already pledged, we wish to discuss further the issue first raised by the right hon. Member for Leeds Central (Hilary Benn) about linking the timing of SIs under clause 9 to the date of debates on the withdrawal agreement, although we will have to bear in mind the possibility that that agreement might be concluded only very shortly before the date of exit.
My right hon. Friend is discussing matters that will have to be considered in detail in Committee. A sensible programme motion has been tabled, but can the Government assure the House that, if more time is needed because, in truth, we have difficulty getting through the programme within the period specified, they will properly consider making more time available to the House?
We think that the 64 hours that have been guaranteed are reasonable, and they compare with the 39 hours and 17 minutes that the Blair Government granted on the Bill to ratify the Lisbon treaty. We have shown today that, where there is good reason to extend debate further, we are willing to consider it very seriously and carefully indeed. I hope my right hon. and learned Friend will take that assurance in the spirit in which it is intended. I hope that the House will recognise that it is in the national interest that we put this Bill on the statute book and that we deliver the democratic verdict of the British people in a way that allows businesses and individuals to plan for their future, confident in what the law will be on and after exit day. I hope that the House will therefore give a clear vote for the Bill on Second Reading.
I beg to move, That the clause be read a Second time.
I rise to speak to the new clause in my name and all the other names that still remain on the amendment paper. Although I am limited to speaking to new clause 49, it is linked to new clauses 50, 51 and 52, for reasons that I will develop. I wish to begin by declaring my sentiments in tabling this new clause and supporting the new clauses that are umbilically attached to it. I am a reluctant Brexiteer. I am too old to feel that I was born to bring us out of Europe, and I have not had one of those evangelical revivals in thinking that somehow life began again once we entered the Common Market and that my aim, purpose, being, and everything I breathed was towards getting us out of that organisation. That is not so. In my own constituency and in the small amount of work I did nationally, I stressed that things were on a balance: we had to make a decision about Europe. We did not need more facts about Europe, but had to draw on our very natures-all that we had been taught in our culture and where, in our very being, we felt we stood in this country-to make the decision about whether we wished to leave or not.
On a point of order, Mr Hoyle. In this new clause we are debating an exit date of 30 March 2019, yet grouped with it there are Government amendments to be voted on at a later date that put the exit date at 11 pm on 29 March 2019. There is a difference of an hour, and as far as I am aware the clocks only go forward on Sunday 31 March. Could you give some guidance to the movers of these amendments so that the arch-Brexiteers on both sides get their clocks and house in order?
That was a good intervention. My new clause decides on British time when to leave, whereas the Government's amendments are at the beckoning of Europeans. We have a very clear choice. I will willingly take interventions that are trying to trip me up in making this short contribution. I fought the referendum campaign, as much as I could, as a reluctant Brexiteer. On balance, I thought that our country's future would increasingly thrive outside rather than inside the European Union. I have always wanted to make a deal, although it is immensely sensible, in any negotiations, to make sure that the other side knows that one may be banking on and planning for no deal. The next factor-I will touch on this again when we think of what the House of Lords might do to a Bill of this size-is that it has been very difficult for most of us to come to terms with what our role has been as MPs in a representative democracy, and with how we digest the fact that a referendum has taken place and the British people have spoken. How do we react in those circumstances, which I believe are unique and in no way comparable with any other parliamentary procedure that we deal with in this House? As I said at the beginning, before I was helpfully interrupted, this new clause stands with three other new clauses. Together they present the Government with a clean, small, slimline Brexit Bill. By the time we get to the end of this process, they will thank the Lord that this life raft is in the Bill and they are able to get on it. In the new clause, we decide on the date-by British time, not European time-when we actually leave. That is our choice. It is about the beginnings of the freedom that we hope will flow-with difficulties, of course-from setting us on the course of leaving the European Union. The second new clause simply ensures that all the laws and regulations come on to our statute book at that point in time-British time, not European time.
Will my right hon. Friend give way?
Can I just finish this point, and then I will willingly give way? The third new clause is on how Parliament reviews those laws-those we wish to keep fully, those we wish to amend, those we wish to add to, and those we wish to kick out. It says that this House will decide how that process is done. I am sure that before we have finished our debate on this Bill in Committee, the Government will be agreeing with me on that. The Henry VIII stuff is an absurd way of going about this business, although as we get down to the mega-task of reviewing this, we may beg the Government for a touch of Henry VIII to get through a task of the size that will be before us. Finally, given that we have real difficulties in completing a negotiation-
Will my right hon. Friend give way?
I said that I would give way as soon as I had finished explaining the new clause and the three new clauses attached to it. Finally, we need a safe haven. Speaking of which, I give way to my hon. Friend.
Will my right hon. Friend not concede that an arbitrary date for Brexit could risk damaging the British economy if clear evidence emerges, as it already is, that hurrying Brexit may badly damage our manufacturing sector, our agricultural sector and our financial services sector?
I am supported by people whose constituents largely agree with my views, not theirs. How they deal with that is not my problem. I agree that it is a difficult problem, but that does not mean to say that one should have any particular solution to it. Generally speaking, the larger the majority, the more clearly Labour voters spoke about Brexit. No, that is absolutely true. I will deal with my hon. Friend's point in a moment, but it comes down to who we think we are dealing with. Are we playing a game of cricket, or have we got people who are trying-
It is not a game!
I am just saying that-I am saying that we will be fighting for our lives, as I will set out if I ever get on to explaining the new clause fully.
My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) wants to intervene.
I am confused by my right hon. Friend's suggestion that all Labour voters supported his position, because the majority of them did not. The majority of Labour Members do not support his position either. That is an important point, so will he correct the record?
I happily add to the record. It makes some people's circumstances more difficult, but I said that generally speaking, the larger the Labour majority in the general election and the bigger the turnout in the last general election, the one before that and the one before that, the more likely constituents were to vote leave.
I would also say-
Will my right hon. Friend give way?
I would also say, to qualify that general statement, that areas that I would love to represent-not my own constituency, but others-voted to remain, against the trend of Labour support, in the referendum.
My right hon. Friend is making a case that I do not agree with, but he is doing so with his usual reasonable approach. I think he is probably right that at the moment, most people have not changed their minds. The reasons why they voted to leave are still, as far as they are concerned, unresolved, and they think that those things will be resolved by leaving. Suppose, however, that it emerges in the next 12 months that all the reasons why they voted as they did will not be realised, and that, on top of that, the economic consequences will be disastrous-what then?
I have only four small sheets of paper, and it has taken me all this time to get this far. I have an answer for my right hon. Friend- Indeed, it seems to me that the Labour side needs educating about where Labour voters are. If my right hon. Friend can contain himself, I will take account of that. I emphasise his wisdom in saying that we do not know where these negotiations will end up. They are fraught, particularly because we are negotiating with a group of people who do not want us to succeed because they fear what will happen in their own countries if we do.
Did the right hon. Gentleman receive a pamphlet-paid for by the taxpayer-from the Government during the referendum, on the back of which they stated that they would carry out the wishes of the people via the vote in the referendum? Does he believe that by having a fixed date, which everybody knows, we will deliver what the people voted for?
I have to confess to receiving the pamphlet and throwing it in the bin immediately. I never believed that the sort of campaign we fought, with false truths on both sides, enhanced our standing as a political class. Neither did it address the very serious issues of what people thought about their own identity, their community's identity, their country's identity and their country's position in the world, on which we all know that people take different views. The idea that a Government pamphlet was going to help us-dear God!
I note that my right hon. Friend qualified his earlier statement, but does he accept that at the last general election, more than 85% of Liverpool, Riverside constituents voted for the Labour candidate, and that 73% of them voted to remain? Does he accept that the people of Liverpool, Riverside have great wisdom, and that that ought to be followed?
If I did, it would mean that the voters of Birkenhead did not have wisdom, which is the very opposite of my hon. Friend's point. I am not going to put my head in that noose.
Will my right hon. Friend give way?
No, I have given way once. This is a serious debate and, if I can make progress, I will willingly bring people in as we go along. I wish to express disappointment with the Government's strategy and their handling of the situation. I do not think it has the sense of importance, drive or coherence that the issue merits. I have argued, publicly and privately, that anyone who seriously compares this historic event to our fight for survival in world war two would follow the move that Churchill made on taking over from Chamberlain, when he established a war Cabinet in place of the existing ramshackle institutions. As I will explain in a moment, the new clause represents the beginning of a new negotiating hand, and I think we need a Brexit Cabinet. It should be small, and the Opposition should be offered places in it. The Opposition were offered places in the war Cabinet, and Mr Attlee and Mr Greenwood accepted those places. We should try to act in the national interest- Hon. Members may laugh-
Clearly, my suggestion is proving shocking to my right hon. and hon. Friends, but it will be a test of whether we are intent on the best possible terms, whether we have a clear position and whether we are putting our country first.
I thank my right hon. Friend and neighbour for giving way. Does he agree that the reason why we ought to have such cross-party co-operation is that this issue is not funny or a joke; it is about the future of our country? That is why we should listen to everyone in this place, and not just act in the narrow interests of the Tory party.
I think my hon. Friend ended her sentence rather early. I think she meant to say that we should try, difficult as it is, to put aside partial affections and concentrate on the national issue.
I can hardly finish a sentence. To those to whom I have given way, I will not give way again until much later in my speech.
My right hon. Friend has not given way to me.
I did give way to my hon. Friend.
It was a point of order.
Well, try another point of order and see if it works. I have a sense of disappointment. We have ceased the aerial bombardment of this Bill, and we are now engaged in hand-to-hand fighting over the nature of our leaving. The sentiments of my hon. Friend the Member for Wirral South (Alison McGovern), my constituency neighbour, about our trying to steer this debate in the national interest are crucial.
No, I will not give way. I want other people to be able to contribute to the debate. The second reason why I feel disappointment at the Government's stance is that they are misreading the other side with whom we are negotiating. A British assumption is always to allow give and take, but we now have the Barnier rule of all take and no give. I will in a moment comment on how we should respond to that. Anybody who is serious, as all of us in the Committee have been, about wishing to award equal status and citizenship to EU citizens in this country know that those negotiations could have been over in half an hour. It was never ever the intention but for the other side to tick that off and say it was very good. Millions of people could have been put at their ease about their lives-both Britons living in the European Union and European citizens, as they will become, living in Britain-and we should consider that very carefully in our negotiations from now on. The third disappointment is that the Government have produced such a Bill. When we were campaigning to leave, I thought we would have a Bill with two, three or four clauses to get us out. I know that the Government have been beguiled by its first title-the great repeal Bill-with some group of clever people thinking it can be great only if it is large, rather than aiming to be effective. I do not believe that a Bill of this size, timetabled as it will be to deliver it for the Government, actually stands much chance of getting through the House of Lords. Hence, my emphasis on the rescue launch waiting in the form of my four new clauses, including this new clause, which I have had such pleasure in moving.
Does the right hon. Gentleman accept that the House of Lords, which is of course unelected and which itself decided to pass the European Union Referendum Act 2015, really has no justification whatsoever for attempting to obstruct, delay or undermine this Bill?
A very important lesson needs to be learned by some of those in the House of Lords who think they can wreck the Bill and wear us down so that Brexit never takes place. There is a very important convention-the Salisbury convention-and there is a very important difference between a referendum and a party's manifesto. The Salisbury convention allows us to give and take on the important parts of a manifesto-the parts to which Governments rightly feel committed, and which they wish to pursue in Parliament so that when they stand for re-election they can say they have done the job they promised to do. This is a different ball game. As I tried to say at the beginning, it is difficult for us all to come to terms with the role we have as MPs and the role we have in a post-referendum debate. I think their lordships should know that if they try to wreck the Bill, many of us will push the nuclear button. Labour wants to see the House of Lords go-I am surprised there was not a cheer at that point-but their lordships will sound their own death knell. Not one of them is elected, and none of them has any standing whatsoever in preventing the Government from inviting the House of Commons to implement the referendum decision, as we are doing today.
I am following the right hon. Gentleman's argument with close attention. Part of the leave argument was to take back control-not just to the House of Commons, but to the country and Parliament as a whole. Is he now trying to undermine the bicameral system?
No, not at all. We will be going late on days such as this, so if the hon. Gentleman would like to read my website, he will see I have outlined my views on House of Lords reform. They are different from those of most others. They are about its being elective, but through electing the great powers in this country-influences such as trade unions and so on-and certainly not through decisions by the party Whips. However, I dare not go down that path because it would take me away from the my new clause.
Will my right hon. Friend give way?
No, my hon. Friend has had one intervention via a point of order, and I think that is it for him.
I doubt it.
My right hon. Friend's analogy about buying a house falls down at the first hurdle, because nobody commits to a date to buy a house before they know what it is they are buying. My substantive point, however, is about the fatal weakness of his proposal, even though, as always, I respect the way in which he argues his case. When the Secretary of State appeared before the Select Committee, he told us that it is possible that the negotiations may go to the 59th minute of the 11th hour. That is undoubtedly possible. In those circumstances, does it really make sense to bind the hands of the country and those who are negotiating on its behalf to get the best possible deal, which is also the weakness of the Government's own amendment 381?
As my right hon. Friend was kind to me about the house analogy, I say that I have always bought my houses, never inherited them.
I bought mine too!
I have been corrected and I withdraw my comment, but the idea that the biggest decisions of our lives, such as that to buy a house, are the ones that we take the most time over is not borne out by any research whatsoever. I do seriously apologise to my right hon. Friend.
The right hon. Gentleman has been a political ally of mine in previous cross-party arrangements, but not on this occasion. He has dodged answering the perfectly serious point that the right hon. Member for Leeds Central (Hilary Benn) just put to him. As things stand, article 50 will take effect in March 2019 and we will leave. Anything in the Bill is superfluous to that. A problem could arise only if-and this is possible-28 member states all agree that they are near to a conclusion but that they require a few more days or weeks to settle it. Once we are going they will not want us to stay in much longer, because they will not want us around for the European Parliament elections. However, it would be utterly foolish if 28 Governments all agreed to extend the process and the British representative had to say, “But we've put into British law a timing that says, to the second, when we are actually leaving.â€ That seems to me a rather serious flaw in the proposed new clause.
The right hon. and learned Gentleman is such a good lawyer, but I wish he had read my new clause, because it notes the day rather than the minute that we will leave. Despite all the encouragement from Members behind me, I was so anxious to withdraw what I said about my right hon. Friend the Member for Leeds Central (Hilary Benn) that I forgot to address his substantive point, and the right hon. and learned Gentleman has reminded me to do so. If we look over our whole history in Europe, we will see that the idea that we finish any negotiations other than at the very last minute is almost unheard of. By including the time, we will be saying, “You will have to begin your shenanigans the month before rather than the month after.â€In conclusion, I am grateful for being allowed to move the second reading of this new clause, to remind people that it is part of a short exit Bill.
I am grateful to the right hon. Gentleman for giving way, because I know he is concluding. I want to make a simple point. The whole argument about having flexibility falls when we look at article 50 itself. It was very specific for a very simple reason, which is that the timescale determines that those who are negotiating must reach, or agree not to reach, an agreement. Simply changing the timescale will not allow them to reach an agreement; they have the time to do it. That is the whole point about compression-to get an agreement. That is why the date was prompted by article 50.
I have one last point to make. I thought that my proposed new clause merely implemented article 50, which we all voted for, to tell our constituents that we had- Well, apart from one Member who voted against triggering article 50. Apart from two or three- Were there any more than four? Perhaps there were five, six, seven or eight. I thought that what I had to say was so uncontentious that my speech would last only five minutes. I apologise to the Committee for the time I have taken. All the proposed new clause does is put on the statute book the actual timing of article 50, which we voted for in overwhelming numbers almost a year ago. I move the new clause in my name and the names of those on the amendment paper.
I am extremely grateful to you, Mr Hoyle. I very much hope that my voice makes it through these remarks. I rise to support clause 1 stand part and to speak to Government amendments 381, 382 and 383. It may help the House and members of the public if I say that the decisions on those amendments will be taken on days seven and eight. Clause 1 reads:“The European Communities Act 1972 is repealed on exit day.â€It is a simple clause, but it could scarcely be more significant. In repealing the European Communities Act 1972, the clause will be a historic step in delivering our exit from the European Union, in accordance with last year's referendum. I hope that all people on all sides of this issue can agree that the repeal of the Act is a necessary step as we leave the European Union.
Does my hon. Friend recall that the official Opposition voted against the Bill on Second Reading and therefore the repeal of the 1972 Act? They still claim that this Bill is not fit for purpose and that it usurps parliamentary sovereignty, when in fact it does exactly the opposite.
I am very grateful to my hon. Friend and I look forward to seeing whether Opposition Members support clause 1 stand part. If we were not to repeal the European Communities Act, we would still, from the perspective of EU law, exit the European Union at the end of the article 50 process, but there would be confusion and uncertainty about the law on our own statute book. For example, it would be unclear whether UK or EU law would take precedence if there was a conflict between them. The status of new EU law would also be unclear once the UK left the EU. I intend first to set out briefly the effect of the European Communities Act on our legal system and the implications of its repeal. The UK is a “dualistâ€ state, meaning that a treaty, even when ratified, does not alter our laws unless it is incorporated into domestic law by legislation. Parliament must pass legislation before the rights and obligations in a treaty have effect in our law. The European Communities Act gave EU law supremacy over UK law. Without it, EU law would not apply in the UK. The 1972 Act has two main provisions. Section 2(1) ensures rights and obligations in the EU treaties and regulations are directly applicable in the UK legal system. They apply directly without the need for Parliament to pass specific domestic implementing legislation. This bears repeating in the context of the clauses to follow.
Does the Minister agree that this simple crucial clause is the way in which our democracy is completely restored and that once it has gone through and been implemented any matter that worries the British people can properly be the subject of parliamentary debate and decisions, no laws and treaties withstanding?
I am very grateful to my right hon. Friend. He has perhaps anticipated my speech by a few paragraphs. UK Ministers and Ministers in the devolved Administrations have made nearly 6,000 domestic regulations under section 2(2) on topics as disparate as air fares, public contracts and preserved sardines. The House, of course, has not remained supine in absorbing all this legislation. We have benefited from the tireless work of the European Scrutiny Committee, chaired so ably by my hon. Friend the Member for Stone (Sir William Cash). It has scrutinised a vast number of EU documents, supporting this House in holding Ministers to account when representing our interests in the EU. Its work has been of paramount importance in holding Ministers to account and maximising the voice of this House on EU matters. On occasions, deliberations in this House have influenced the laws adopted by the EU, but ultimately this House was, on every occasion, obliged to implement our EU obligations. We could not refuse new EU law because of our obligations to the EU.
Does my hon. Friend accept that most of this legislation is proposed by the Commission, considered by the Council of Ministers, including a British Minister, and, nowadays, approved by the European Parliament before it becomes law? Can he name a significant European law or regulation that was opposed by the British Government at the time, which the Government are now proposing to repeal? Most Brexiteers cannot think of one.
I am most grateful to my right hon. and learned Friend. I think the question at stake here is not whether there are legitimate processes in the EU; it is whether we approve of them. The one that I am always glad to bring to people's attention is, of course, the ports regulation, which we will have to stick with all the while we are within the EU. It is perhaps unique in being opposed by the owners of ports, trade unions and, it seems, all parties involved with our strategic interests in ports. They are all opposed to that regulation. I very much look forward to the day that we can make our own decisions about how our flourishing private sector infrastructure works.
Does my hon. Friend agree that those who accuse the Government of a power grab would be very happy for unelected EU officials to continue to exercise these powers, rather than an elected Government accountable to this elected Parliament?
Indeed. I have often thought that the scenery of our constitution had remained in place throughout my lifetime, but not the practical effect the electors of this country expected it to have.
In response, vicariously to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), may I point out that most decisions taken by the Council of Ministers are effectively made by consensus behind closed doors, with no record of who said what, how the decision was arrived at, or, unlike this House, with no record of any of the proceedings either?
I am most grateful to my hon. Friend. I thoroughly recommend the report of his Committee relating to that subject. I think what has been established in this sequence of interventions is that clause 1 could scarcely be of greater constitutional significance. It will repeal the 1972 Act on exit day, removing the mechanism that allows EU law to flow automatically into UK law, and remove one of the widest-ranging powers ever placed on the statute book of the United Kingdom. The repeal makes it clear and unarguable that sovereignty lies here in this Parliament.
If the 1972 Act is repealed before the end of what Ministers call the implementation period but what I prefer to think of as the transition period, what will be the legal basis for our relations with the EU and our free trade agreements with the 57 third countries?
I am happy that we have announced the withdrawal agreement and implementation Bill, which will follow in due course, to establish that legal basis, but for the moment I want to conclude this section of my remarks and move on to the amendments.
Will my hon. Friend give way?
Not just now. I have given way quite a few times. I am now going to make some progress and get on to the amendments. How we exercise this restored power in the future will be a choice for this place. The Government are clear that we want a smooth and orderly exit, achieved through continuity in the law at the point of exit, as we shall discuss at later stages. For now, I hope that all Members can agree that it is essential that clause 1 stand part of the Bill. I now turn to today's amendments. It is fitting that the first amendment debated in Committee is from the right hon. Member for Birkenhead (Frank Field). He has got to the heart of the matter of when we leave the EU.
On our time.
I will come to that point. I listened carefully to the right hon. Gentleman's speech, and I have great sympathy for the case he makes. I will just pick up on two points. First, on using our time, he has not of course given a time of day in his new clause. One thing I learned during my service in the Royal Air Force is the ambiguity that arises when one implies or deliberately specifies midnight, which of course can be taken as the beginning or end of a day. For that reason, his amendment is technically deficient. I hope that in due course he will choose not to press it to a Division, but will instead accept the Government's set of amendments, including the consequentials.
I would love the Government to move an amendment specifying 23 hours and 59 minutes on the day we leave, but it should be on our time, not on others' time or terms. Will they move that amendment to my new clause at a later stage?
I am most grateful to the right hon. Gentleman. He has made his case well, of course, but we will move the amendment that we have tabled.
Will the Minister give way?
I will give way once more, and then I will make some progress.
Does the Minister not agree that exactly this argument is creating division between us and our European neighbours, which will make it very difficult to create a deep and special partnership?
I do not accept that at all. When the Prime Minister wrote to the President of the European Council in March, she set in train the defined two-year process of article 50, which, unless extended by unanimity, will conclude on 29 March 2019. That is why the Prime Minister said in her Florence speech that the UK would cease to be a member of the EU on that day. That is the Government's policy.
As I said, I would like to make some progress. The Government have, however, listened carefully to the debate about the setting of exit day for the statutory purposes of the Bill. There has been some uncertainty about whether the exit day appointed in the Bill would correspond to the day the UK leaves the EU at the end of the article 50 process. The Government sympathise with this uncertainty. This is also an issue on which the Lords Constitution Committee opined in its report in September. It stated:“We are concerned that the power to define ‘exit day'-a matter that is pivotal to the operation of the Bill-is unduly broad in its scope and flexibility, and that it is not subject to any parliamentary scrutiny procedure.â€Such concerns were further voiced by the hon. Members for Feltham and Heston (Seema Malhotra), for Cardiff South and Penarth (Stephen Doughty) and for Wakefield (Mary Creagh) on Second Reading, not least regarding the breadth of the power potentially to set numerous exit days. In fact, there has been a notable disconnect, as we perhaps saw earlier, between Labour Front and Back Benchers on this issue. While several of its Back Benchers have submitted amendments and raised concerns about exit day, its Front-Bench team seem to have refused to acknowledge the need to establish clarity. We would like to put this issue to rest. We recognise the importance of being crystal clear on the setting of exit day and are keen to provide the certainty that the right hon. Member for Birkenhead and others are seeking. In the light of this, the Government have tabled amendment 381 to clause 14, along with the consequential amendments 382 and 383, which will set exit day at 11 pm on 29 March 2019. Of course, this is slightly different to his amendment, in that it sets a time as well as a date for exit.
I am sorry that the Minister is not feeling well, but does he understand how impossible it is for me to explain to my constituents that they can have certainty about nothing in relation to Brexit as the Government plan it, except, according to him, the date when it will happen?
I forget for the moment whether the hon. Lady voted for the triggering of article 50, but the House did trigger article 50, and the process is quite clear: two years after that, we leave the European Union.
I wonder whether the Minister is going to admit to the Committee that setting a date for exit is mere political window-dressing. The Prime Minister has told the House that if there is to be a transitional deal, which she wants, her understanding is that it will be under article 50. That means that we will be staying in the single market, staying in the customs union and subject to EU law during the transitional period, so this exit day is simply a sop to Back Benchers. When is the Minister going to tell them the truth?
I will come to the implementation period in a moment, but one of the crucial points is that we need to become a third country in order to conclude our future relationship agreement. The Prime Minister set out in her Florence speech the outline of that implementation period, which would allow practical continuity under new arrangements that would enable us to be a third country and conclude the future relationship agreement.
I will give way just once more, to one of the Members behind me, and then I will make progress. I give way to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), my beloved neighbour.
I am most grateful to my hon. Friend. Does he recognise that there are two different issues relating to exit day? Some of the amendments were tabled to express the fear that there might be multiple exit dates. That is very different from fixing a day. Obviously, under article 50 there is an expiry date, but, as my hon. Friend knows, article 50 itself contains provision for a possible extension of the period if that is what is needed to conclude an agreement. That is why I find the Government's amendment so strange. It seems to me to fetter the Government, to add nothing to the strength of their negotiating position, and, in fact, potentially to create a very great problem that could be visited on us at a later stage.
My right hon. and learned Friend has made his point with considerable clarity. Of course I accept that the article 50 process involves certain provisions, but I should say to him that a number of learned voices in private expressed concern about the existence of a degree of elasticity in the sunsetting of the powers in the Bill, and, for that reason, were anxious for us to fix the exit date. I should also say to him that, while he made his point with his usual clarity, other Members expressed the view that we should put beyond doubt the time and the date when we leave the European Union, and that is what our amendment does.
I did say just a couple of minutes ago that I would give way only once more, but on this occasion I will give way to my hon. Friend the Member for Wellingborough (Mr Bone). Then I really will make a little more progress.
The Minister is making a very good speech, but what is not clear-and there is some media speculation about this-is whether, if amendment 381 is passed with the exit date confirmed as it is, the Bill allows that date to be changed subsequently by means of regulation.
The answer to that is no. The point has been raised specifically in respect of the powers in clause 17, which relate to the consequences of the Bill's enactment. I look forward very much to a full debate on those powers when we reach clause 17, but the short answer to my hon. Friend's question is no.
I will get on with my speech now.
Will my hon. Friend give way on that very point?
No. I did say to my right hon. and learned Friend, and the Committee, that I was going to get on with it. If I give way to him, I will not make the progress that I need to make. We said on Second Reading that we would listen to the concerns of the House, and our amendment delivers on that promise. Ultimately, the Government want the Bill to provide as much certainty as possible, and we are happy to consider amendments that share that goal. I hope that in the light of this the right hon. Member for Birkenhead (Frank Field) will be willing to withdraw his new clause, and hon. and right hon. Members with related amendments will withdraw them, too.
I am grateful to the Minister for being pretty frank with the Committee now, because if what he says is right, his Government's set of amendments pave the way for no deal. If I am wrong about that, why did his predecessor, Lord Bridges of Headley, say that he did not believe it would be possible to sort out the divorce bill, the implementation period and the final deal on our withdrawal within the timeframe envisaged? What the Minister is planning for-he should be absolutely frank with the British people about this-is no deal, and he has no mandate from the British people to do that.
I responded on this subject in a recent debate, and I refer the hon. Gentleman to everything I said on that occasion. He is wrong: we are planning to secure a deep and special partnership with the EU, and we intend to achieve that within the implementation period, which the Prime Minister described and set out in her Florence speech, and we look forward to passing the necessary legislation to do it.
I shall give way twice more and then conclude my remarks.
Is the Minister aware that the chief financial officer of Aston Martin has said that it would be a semi-catastrophe if the UK went for no deal? Also, why will the Minister not allow the option for article 50 to be extended, to ensure that there was a deal if we were very close to reaching one on the date he has set?
As a responsible Government, we are going to go through the process of making sure that our country is ready to leave the EU without a deal if that proves necessary. We will take the steps to be prepared, as a responsible Government should. However, this Bill cannot pre-empt the negotiations by putting things into statute before they have been agreed. The Government intend the UK to leave the EU on 29 March 2019, and that is why we intend to put that on the face of the Bill, but we have always been clear that we will bring forward whatever legislation is necessary to implement the agreement we strike with the EU, which is why yesterday my right hon. Friend the Secretary of State announced the Withdrawal Agreement and Implementation Bill, which we will introduce once Parliament has had a chance to vote on the final deal. This Government take their responsibilities seriously and are committed to ensuring that the UK exits the EU with certainty, continuity and control. It makes no sense to legislate for one piece of legislation on the face of another, and I therefore ask the right hon. Member for Normanton, Pontefract and Castleford not to press her amendment to a vote. With that, I recommend that clause 1 stand part of the Bill.
I am pleased to speak to amendments 43, 44 and 45, which would give Parliament control over the length and basic terms of the transitional arrangements and allow Parliament to set the clock on the sunset clauses. These are the first of many amendments tabled by the Opposition that we will consider over the next few weeks, all of which have one purpose, which is to improve the Bill. Frankly, it is not helpful when Ministers-and, indeed, the Prime Minister over the weekend-seek to characterise scrutiny and accountability in this House as an attempt to thwart Brexit. It is not. We accept that the British people voted to leave the European Union. It might have been a close vote, but it was a clear vote. That is why we voted to trigger article 50. Whether we leave the European Union is not a matter for debate, but how we do so is crucial for the future of our country. The British people voted to pull out, but they did not vote to lose out. They look to Parliament to secure the best deal, and that includes not stumbling over a cliff edge in March 2019.
Could the hon. Gentleman define the Labour party's idea of leaving the European Union?
I am surprised that such an ardent Brexiteer as the right hon. Gentleman does not understand what leaving the European Union involves. We do. Until last Thursday, the debate on clause 1 looked fairly straightforward. The article 50 notification made our exit from the European Union in March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament. But then the Government did something needless: they tabled amendments 381 and 382, putting a specified exit date-and, indeed, a specified exit time: 11 pm, or midnight Brussels time-into the Bill. Their consequential amendment 383 seems to contradict the other amendments in some regards, which underlines the chaotic way in which the Government have approached the Bill, but taken together, the intention of the three amendments is clear.
The rather mysterious explanation that the hon. Gentleman gave to my right hon. Friend the Member for North Shropshire (Mr Paterson) needs some elucidation. Would he be good enough to explain whether leaving the European Union means repealing the European Communities Act 1972, and why Labour voted against the Bill on Second Reading?
I would have thought that it would be as clear to the hon. Gentleman as it is to me that leaving the European Union does involve revoking the European Communities Act. I will go on to explain why we have concerns about the Government's amendments and the different decisions within them.
Did the hon. Gentleman understand, as I did, when the vote on article 50 took place, that the provisions outlined in article 50 would apply, including the ability of 28 nations to agree to extend the negotiating process?
I did indeed, and I will come to that point later in my remarks. I said that the intention of the three amendments is clear despite the confusion caused by amendment 383. It is clear, but it is needless because article 50, triggered on 29 March 2017, provides for a two-year exit timetable.
Will the hon. Gentleman give way?
No, I will make some progress. There is therefore no question about whether the UK will leave the EU at the end of that period in accordance with the article 50 notification. So what is the purpose of the Government's three amendments? Is it simply to appease extreme elements within the Conservative party, not thinking of the consequences for the country, or is it a deliberate decision to unpick the Florence speech, demonstrating that the freelancers in the Prime Minister's Cabinet are actually in charge of policy?
I suspect that it may be the latter. Given the chaos that the negotiations are in, the public will be wondering about the lack of progress. When the Government suddenly want to impose a guillotine, rather than use the article 50 process, the public may have good reason to be suspicious.
I thank my hon. Friend for his intervention. The public have reason to be suspicious and worried.
Will the hon. Gentleman give way?
Is not the difference between an implementation and a transition the whole point? If it is an implementation, we are implementing the consequences of having left; if it is a transition, we are transitioning from being inside the European Union to being, at the end of the process, outside. Therefore in the transition we would be de facto members of the European Union, on the basis that the hon. Gentleman is setting out, defeating the whole purpose of this Bill.
Clearly, the transitional period is a bridge between where we are now and where we will be once we have left the European Union. The hon. Gentleman's point is not relevant to the point I am seeking to make.
I wanted to make this intervention on my right hon. Friend the Member for Birkenhead (Frank Field), but he would not take it. I commend the speech of my hon. Friend the Member for Sheffield Central (Paul Blomfield), and I seek his opinion on new clause 49. The new clause is linked to other new clauses, but if it is agreed there is no guarantee that the other new clauses will be agreed. Passing new clause 49 would therefore do a grave disservice to this country. Will he make clear the Opposition Front Bench's position on new clause 49?
I am happy to clarify that we oppose new clause 49. Whether in relation to new clause 49 or to the Government's amendments, closing down the opportunity for effective transitional arrangements is deeply self-harming.
I believe that the Labour party wants to have a smooth transition to a good quality future relationship, but I draw to the hon. Gentleman's attention what the Prime Minister said in her Florence speech:“Neither is the European Union legally able to conclude an agreement with the UK as an external partner while it is itself still part of the European Union.â€My point is that we need to become a third country before we can conclude the kind of future relationship that I think the hon. Gentleman would like us to have.
I do not disagree with the Minister. It is precisely our point that, during the transitional period, we cannot disable the role of the Court of Justice of the European Union, otherwise we will not achieve the arrangement that we apparently both seek.
The hon. Gentleman is making a powerful point, and I wonder whether I might help. I asked the Prime Minister what she thought the legal basis of any transitional deal will be, and she said that the EU takes the view that it will be article 50. When I was in Brussels with the Exiting the European Union Committee last week, I raised this issue at the highest level of the EU and was told that, yes, it is envisaged that during the transitional deal Britain will stay in the single market, in the customs union, within EU law, within the acquis and under the jurisdiction of the Court of Justice of the European Union.
I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.
I am listening carefully to the hon. Gentleman. Is not part of the difficulty that there is a sense of people being disingenuous about the reality of the process of Brexit? Of course it is possible that, at the end of this, despite how we pass this legislation, the Government will come back with a withdrawal agreement Bill-the statute they have promised us-that does the very thing they will not admit at the moment: keep us within the jurisdiction of the Court of Justice of the European Union during a transitional period. Would it not be better, and would it not help us in our debates on this Bill, if we had a bit of honesty and clarity from all sides about the implications of withdrawal, about how we have to go about it and about the options-sometimes the lack of options-that may be open to us?
I very much agree with the right hon. and learned Gentleman. Otherwise, we will face the nonsense of the Government introducing new legislation effectively repealing the repeal Bill, or a key part of it.
Further to the point of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on the difference between transition and implementation, we know for sure that it will be an implementation period because we will have to implement the withdrawal agreement. We do not yet know whether it will be a transitional period because we do not know, and will not know at the point of Brexit, whether we will have any final deal to implement.
Does my hon. Friend agree that the real way in which the Prime Minister could reach out is by making it clear that she accepts the jurisdiction of the ECJ for the implementation period? That would resolve a lot of her problems.
My hon. Friend is absolutely right. The reckless ideological red line on the ECJ has got us into many problems-not only on this, but on the membership of Euratom and in many other ways. If the Government cannot withdraw their amendments and engage in that process with us we cannot support them, because of the impact on the economy, jobs and livelihoods, as we would plunge over the cliff edge. I should also say that we cannot support amendment 79. We believe the Bill should operate on the presumption of devolution. My hon. Friend the Member for Darlington (Jenny Chapman) will set out our position in greater detail in subsequent days. The Government have had months to repair this deeply flawed Bill. They could have come forward with amendments on workers' rights, environmental protection, the charter of fundamental rights and limiting the scope of delegated powers, but instead they have chosen to come to this House with a gimmick on the departure date. This gimmick is about the Prime Minister negotiating with her own party, rather than trying to get a Brexit deal that prioritises jobs, the economy and the livelihoods of our people. The Government's amendments are a product of the divisions at the heart of this Government on their approach to Brexit-divisions that are causing chaos, and this chaos is threatening our economy. We have a Prime Minister so weak that she is trying to tie her own hands behind her back to appease the extremists within her party.
Will my hon. Friend give way?
No, I will not. Rather, I should say that the Prime Minister is letting the Foreign Secretary and the Environment Secretary tie her hands for her. She is putting internal party management before the national interest. This country deserves better, and we are offering it.
My right hon. and learned Friend's stand on this issue has been completely consistent for decades, but can he stand up before the Committee and justify staying within the common fisheries policy on ecological, environmental, economic or social grounds?
I look forward to seeing what a British fisheries policy is going to comprise. This is outside the scope of the debate, so I shall be as brief as I can be, but the average fisherman I meet seems to believe that if we exclude foreign ships from our waters, we can give up all this scientific stuff about conserving stocks and there will no longer be any quotas. That is the usual argument put to me. Of course, most British fish is sold in the European Union-it is a very important market for us-and it is of course inconceivable that EU countries could be so vicious as to react to our throwing their ships out by not buying the fish that we catch. No doubt in due course a more rational British fisheries policy will emerge, and no doubt we will debate it in a more comfortable context.
If there is anybody in this House who knows each of the 1,600 regulations in meticulous detail, it is my hon. Friend the Member for Stone (Sir William Cash).
Indeed. I wish to challenge my right hon. and learned Friend on his assertion that the manner in which the Council of Ministers has been operating has been adequately democratic and transparent. Can he please explain to us, from his own extensive experience, how it works and will he deny that, for the most part, it is done behind closed doors and that it is done by consensus, so nobody knows who decides what, how and when?
Under the Major Government, we introduced a process whereby parts of the European Council meetings were held in public. The Council of Ministers do hold public sessions, and an attempt was made to reach decisions in public sessions. It probably still goes on. It does not amount to very much.
No, let me finish my answer. We did try to tackle this criticism. What happened was that each of the 28 Ministers gave little speeches entirely designed for their national newspapers and television, and negotiations and discussion did not make much practical progress. When the public sessions were over, the Ministers went into private session to negotiate and reach agreement. I used to find that the best business at the European Council was usually done over lunch. I have attended more European Council meetings than most people have had hot dinners. The dinners and the lunches tended to be where reasonable understandings were made. There were very few votes, but Governments made it clear when they opposed anything. When the council was over, everyone gave a press conference. It was a slightly distressing habit, because some of the accounts of Ministers for the assembled national press did not bear a close resemblance to what they had been saying inside the Council. I regret to say that some British Ministers fell into that trap. British Ministers and Ministers of other nationalities who had fiercely advocated regulating inside the Council would hold a press conference describing their valiant efforts to block what had now come in, which confirms some of my hon. Friend's criticisms. The fact is that most British Governments made it clear what they opposed and what they did not. If a regulation was passed in their presence, they had to come back here to explain why they had gone along with it. Now, that is enough on the European Communities Act.
Does my right hon. and learned Friend agree that, notwithstanding what happened in the past, the reality is that we have had the referendum and 52% have voted to leave, so it is now imperative that we all come together as much as we can to get this right? We need to get the best deal and the best legislation to deliver that deal. Most importantly, we must return sovereignty to this Parliament, which should have its proper meaningful vote and say-deal or no deal.
My right hon. Friend leads me back to the serious core of this debate. It will be disastrous if we do not get it right on this important matter-the question how precisely the Bill sets out the timing of the departure that is going to take place.
Will the right hon. and learned Gentleman give way?
Despite what the right hon. and learned Gentleman just said, is not it fortunate that the Government have time to rethink this? It has already been made clear that the Government and the Opposition will oppose the new clause of my right hon. Friend the Member for Birkenhead (Frank Field). The Government amendment on the matter will not be considered until the eighth day in Committee. Therefore, is not there ample time for the Government-without losing face-to listen to the right hon. and learned Gentleman's good sense and withdraw their amendment before that time?
I will not try to emulate the hon. Gentleman's eminently sensible advice. By the time the Government have to concede this point, which I trust they will, we will all have forgotten the slightly odd circumstances in which this amendment was produced. He sums up the situation. It is quite unnecessary to close down our options as severely as we are with this amendment, when we do not know yet what will happen. It is perfectly possible, on all precedents, that there is a mutually beneficial European and British need to keep the negotiations going for a time longer to get them settled and not to fall into the problems this Bill was designed to address.
Will my right hon. and learned Friend give way?
Would the hon. Gentleman like to add to his list the comments of those such as Dan Hannan, who argued for leave? He said, “Don't worry, you can vote to leave because we will stay in the single market and the customs union.â€
The hon. Lady makes an excellent and principled intervention. To double down on that, I will quote the leader of the Scottish Conservatives. The problem is that I cannot quote her directly; I will have to paraphrase what she said, because if I read out the quote, I would be held to be out of order in this place. She called into question the veracity of claims on costs in terms of the EU, and the veracity of claims made by people who are in government about Turkey's EU membership and an EU army. I am sorry that I cannot quote her directly, but I would find myself in a bit of bother if I did.
Is the hon. Gentleman aware of the work done by Economists for Free Trade, which states that the £350 million promised to the NHS is fundable? Is he aware of the agreement yesterday at the European Union on a European army? Both those things can easily be answered.
If only the Government had seen the hon. Gentleman's talents, he could have been in government implementing these changes. When it comes to increasing funding for the NHS, I look forward very much to the conversations that he and I will have as we pass through the same Lobby in an effort to get the health funding that was promised by people who are now in government.
Is the hon. Gentleman aware that, as we have seen today, the hon. Member for North East Somerset (Mr Rees-Mogg) has his supporters in the Cabinet? The Department for International Trade was gleefully retweeting-until it deleted the tweet-the speech that he made earlier, which called for a race-to-the-bottom, low-regulation Britain.
The hon. Gentleman makes an excellent point, as he always does on these matters, even though he and I may not agree on much. Ruth Davidson and I do not often agree on much either, but she was right that we deserve the truth. This place deserves accountability over the promises that have been made. I wonder whether the Minister, who is in his place and who made those promises as part of Vote Leave, will address the question of what will happen about these promises. They were made to the people before they voted in a plebiscite, and he has some responsibility for that.
I will give way to the hon. Lady, and then to the Minister.
Does the hon. Gentleman agree that people voted to leave the EU because they wanted a better future? They did not vote for Brexit at any cost, including the cost of democracy.
The hon. Lady makes a good point. I will take an intervention from the Minister, since I mentioned him, and then I will make progress with my speech.
I hope that the hon. Gentleman will read the report published by the Treasury Committee during the referendum campaign. The report, which has my name and that of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on it, calls into question the veracity of claims on both sides of the campaign.
The Minister is trying to absolve himself of responsibility for spending on the health service. If only he had done that before the EU referendum. If only he had stopped people putting it on the side of a bus. It is extraordinary, because those Vote Leavers are Ministers now. They are in the posts that they wanted, and they need to take a bit of responsibility and deliver on their promises. If Labour get into government, Conservative Members will quite rightly expect them to deliver on their promises.
I will not give way at the moment; I will make some progress, as I promised I would. This is the question: in any future referendum on any issue, are we all free to say whatever we like, because nobody will be held to account for what has been said?
Will the hon. Gentleman give way?
Not at the moment, because I made a promise. Surely Members from all parts of the House must recognise the damage that has been done to politics as a whole by the empty promises that were made by Vote Leave. Frankly, that is one of the many reasons why this Bill deserves to fall. The right hon. Member for Birkenhead (Frank Field) made a good point about compromise. In a Parliament of minorities, we need to have compromise. It is almost a year since the Scottish Government published their compromise, under which we would have remained part of the single market-the single market was mentioned by the hon. Member for Eddisbury (Antoinette Sandbach). Leaving the European Union is not something I want or wanted, and it is not something for which my constituents or my nation voted, but the nature of compromise is one of give and take. Remaining part of the single market is a compromise suggested not just by the SNP but by experts-on these Benches, we still listen to experts-and by members of other political parties, and it was pushed for by the Secretary of State for Scotland and the leader of the Scottish Conservatives as well. I urge Members to look at that suggested deal. Under our amendment 69, instead of our crashing out of the European Union, we would retain membership of the EU until we can sort this out. We will also be backing amendment 79, from our Plaid Cymru colleagues, because it is important that democracy does not begin and end in this place, and the devolved Administrations should have a key role as we go through this process. We are now in the situation where no deal is becoming more and more of a reality, as I will mention in my concluding remarks.
The hon. Gentleman will remember that the former Chancellor said during the referendum campaign that should we leave the European Union, we would be leaving the single market. That was made absolutely explicit. The hon. Gentleman has spoken about future referendums, and he wants a second referendum in Scotland. Should the Scottish people vote in such a referendum by 52% to 48% to leave the United Kingdom, will he, after much discussion, argue for a third referendum?
This is extraordinary, isn't it? Something the Scottish Government had the decency to do before the independence referendum was to produce a 670-page White Paper. There are Members in the Chamber-I am looking at the hon. Member for Edinburgh West (Christine Jardine)-who did not agree with it. She campaigned for a no vote, and I respect her for doing so, but we had the courage of our convictions and laid out what we stood for. The mess we are in today is because the Conservatives did not have the courage of their convictions and did not lay out what voting to leave the European Union would mean. A no deal would mean 80,000 jobs gone in Scotland. A city such as Aberdeen would lose £3.8 billion, and Edinburgh would lose £5.5 million, while there would also be an impact on rural areas. I welcome what the Prime Minister has said on security issues-that we should pull together-but with no deal we would lose access to EU security databases in combating cross-border crime, which would be grossly irresponsible.
May I just say that from the perspective of Northern Ireland, no deal would be absolutely disastrous? It would inevitably mean a hard border. As one of those who grew up in Northern Ireland through 32 years of violence, killing and mayhem, I am not prepared to sit in this Chamber and allow the House to go down a no deal route, which would endanger people, UK border officials and Police Service of Northern Ireland officials along the border. It is imperative that we have a deal.
I thank the hon. Lady for her intervention. Hon. Members on both sides of the House would do well to listen carefully to her words. Northern Ireland has been vastly overlooked and it continues to be overlooked, and the hon. Lady makes an excellent point. One thing that concerns me and should concern Members on both sides of the House is that we have a no deal scenario, with Ministers playing Russian roulette with our futures-the futures of people in Northern Ireland and across the United Kingdom-as well as a slash-and-burn approach to politics that will profit absolutely nobody whatsoever. I will conclude by saying that we may disagree on many issues, but we come to this place hoping-I respect Members as they do this-that we will leave our constituencies, our respective nations and the UK a little bit better off. By backing the Bill with such a lack of preparedness, we will be doing no such thing: we will not be leaving future generations better off. So weak are the arguments of those who back leaving the EU-I have heard this not so much from SNP Members, because Scotland voted to remain, but from Labour, Conservative and other colleagues-that they question why we are tabling amendments rather than challenge us on their substance. We will seek to amend this Bill as it goes through the House and to find common cause with colleagues from across the House. However, we know that what we are trying to achieve, even if we do get common ground, is to make this situation not better, but less bad. That is not a situation in which any Member should ever find themselves in this House. I urge Members to reconsider and I urge the Government to press the reset button. There is far more at stake than the future of this Government or, indeed, that of any Member of this House.
I want to start by simply outlining that, contrary to what the hon. Member for North East Fife (Stephen Gethins) has just suggested about there being weak arguments for why we should leave the EU and repeal the European Communities Act 1972, it is absolutely essential that we do so if we are going to have a self-respecting, self-governing democratic country. The Bill and this whole issue are about one main question, namely democracy, which is what everything else necessarily flows from. All the economic arguments and questions relating to trade and other matters are ultimately dependent on the question of whether we have the right to govern ourselves in this sacred House of Commons. That is the basis on which the people of this country make decisions, of their own free choice, in general elections-whether it is to vote for the Labour party, the Liberal Democrats, the SNP or the Conservative party-and then a decision is made in this House as to how they will be governed. I repeat what I have said: we have just had Remembrance Day. I simply want people to reflect for one moment on the fact that those millions of people who died in both world wars died for a reason. It was to do with sustaining the freedom and democracy of this House.
Does not democracy presume that a Government would listen to the will of the House of Commons, whose Members are individually elected by their constituencies? Would it not be slightly odd, therefore, to proceed with the Bill without taking out the Henry VIII powers?
Put simply, on the European Union Referendum Act 2015, which was a sovereign Act of this House-the point that the hon. Gentleman has just made-the House of Commons agreed, by six to one, that it would deliberately transfer to the people the decision whether to leave or remain in the European Union. Unless that Act is repealed, I do not believe that that decision should be returned to by the House.
The hon. Gentleman has referred to the millions of people who died in two world wars. Those two world wars took place before the existence of the European Union and we in Europe, including this country, Germany and France, have lived in peace for decades. Is not it the case that France, Germany and other countries will now never, ever go to war because of the European Union?
The answer to the hon. Gentleman's question is that no two democracies have ever gone to war with one another. I declare a personal interest in this issue because my father was killed in Normandy, fighting for this country, and I am proud that he got the Military Cross for that reason. This is something that many people in this country really understand and believe. It is not easy to explain, but it is to do with the fact that people understand the real reasons that self-government is so important. The proposal in the European Communities Act 1972, which we are now repealing, was the greatest power grab since Oliver Cromwell. It was done in 1972 with good intentions. I voted yes in 1975 and I did it for the reason the hon. Gentleman mentions: I believed it would create stability in Europe. The problem is that it has done exactly the opposite. Look, throughout the countries of the European Union, at the grassroots movements and the rise of the far right, which I deeply abhor and have opposed ever since I set about the Maastricht rebellion in 1990. I set out then why I was so opposed to the Maastricht treaty: it was creating European Government and making this country ever more subservient to the rulemaking of the European Union. As I said in response to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), that has been conducted behind closed doors. We have been shackled by European laws. He asked at one point if we could give one example. The ports regulation is a very good example. We fought that in the European Scrutiny Committee and in the House of Commons, but we were not allowed to make any difference to it. It was opposed by the Government, it was opposed by the Opposition, it was opposed by all the port employers and it was opposed by the trade unions. What could we do about it? Absolutely nothing!
Does my hon. Friend agree that once Parliament has passed the repeal of the 1972 Act, Ministers will only be able to do things that this Parliament permits them to do? Today, Ministers have to do many things that the European Union insists on, which this Parliament cannot discuss or overturn.
There are at least 12,000 regulations, every one of which would have required a whole Act of Parliament, with amendments and stages in both Houses. A transcript would have been available. People would have known who voted which way and why, and known the outcome of what was a democratic process. Instead, as I said to my right hon. and learned Friend the Member for Rushcliffe-even he conceded that I was right on this-the process is conducted, over bibulous lunches and in the Council of Ministers, in a manner completely lacking in democratic legitimacy, yet, because of consensus arrangements behind closed doors, it becomes part of our law through section 2 of the 1972 Act. It is imposed on us by our voluntary consent. It is therefore up to us and the people of this country to decide, by their voluntary consent and their freedom of choice, to get out of this, just as it was brought in by an Act of Parliament, without a referendum, in 1972.
Has the hon. Gentleman not shown a deep misunderstanding of how the European Union works through consensus and participatory democracy? Rather than one country dictating to another, that is the whole spirit of the European Union. No one country is sovereign, but decisions are taken in the round.
I am sorry to disillusion the hon. Lady. I have been in this House for 33 years and I have been on the European Scrutiny Committee for 32 of them. I can absolutely assure her that what she says is simply not reflected by the practice of the European Union: the system is essentially undemocratic.
Does my hon. Friend not feel that it is ironic that all 12,000 EU regulations will be imported into UK law under a process that will not have the detailed scrutiny of the House, because Henry VIII powers will be used to do it?
My hon. Friend might just reflect on the fact that there is no other way of transposing the legislation. I drafted the original repeal Bill, so I understand it very well. I did so before the referendum, in fact, because-I say this to my right hon. and learned Friend the Member for Rushcliffe-I believed we would win. In reality, once we have brought this into UK law, we will be able to have our own Bills-on agriculture, fisheries, customs, immigration, and various other parts of our constitutional arrangements-that can be properly discussed and amended.
Does my hon. Friend agree that every single one of the regulations coming into UK law is already abided by in this country and in this Parliament and are to its satisfaction at the moment?
Yes, the reality is that the Bill, if and when it goes through-and I believe it will-will incorporate into UK law EU legislation already consented to in the way that my hon. Friend mentions. We have agreed to them, but unfortunately they have not had the democratic legitimacy that will be conferred upon them when the Bill goes through. I proceed now to the important question of the European Court of Justice. I made this point to the Prime Minister about 10 days ago and again to the Brexit Secretary last week. I wish to mention three pieces of case law that we inherited when the treaties that had accumulated after 1956 came upon us through section 2 of the 1972 Act. The first two are Van Gend en Loos in 1963 and Costa v. ENEL in 1964. In its judgment in the first case, the European Court asserted that“the Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rightsâ€. In Costa v. ENEL, the Court ruled:“The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rightsâ€. In 1970, in the Handelsgesellschaft case, the Court said that community law should take precedence even over the constitutional laws of member states, including basic entrenched laws relating to fundamental rights. It does not get more profound than that. Those decisions are mere assertions by the Court, yet under section 3 of the 1972 Act, we agree to abide by them.
Will my hon. Friend agree that all treaties involve a pooling of sovereignty? We gave up immense sovereignty when we joined the United Nations and NATO, membership of which we would never dream of renouncing. The European Court exists to enforce treaty rights, including obligations on members. Does he recall probably the most important case there of modern times, when the British Government took the European Central Bank there to assert our treaty rights so that the City of London and our financial services industry could have a passport to financial services in the eurozone? It was worth thousands of jobs and showed the benefit of the Court in upholding treaty rights, including the most important treaty rights of the UK.
I also remember the case of Factortame, when Lord Bridge made it clear that by Parliament's voluntary consent, given by virtue of the 1972 Act, an Act of Parliament-namely, the Merchant Shipping Act 1988-could be struck down. I am not trying to be disingenuous. The fact is that the 1972 Act empowers the European Court to strike down UK Acts of Parliament. That is what sovereignty is all about.
The hon. Gentleman talks about sovereignty and the pooling of sovereignty. Building on the point from the right hon. and learned Member for Rushcliffe (Mr Clarke), how does the hon. Gentleman think we will achieve new trade deals without ceding sovereignty, given that all trade deals-like EU membership, as the right hon. and learned Gentleman just pointed out-require the ceding of sovereignty?
I must say to the hon. Gentleman, and to my right hon. and learned Friend the Member for Rushcliffe, that there is a world of difference between that and having agreements by virtue of treaties in international law, which are actually matters on which it is possible to make decisions without being absorbed into and entangled in a legal order. That is the difference. It is the acquis communautaire and its principles that completely undermine the sovereignty of this House. I am prepared to concede that some people-
I am sure that my hon. Friend will be making this point, but I will try to anticipate it. There are circumstances in which the pooling of sovereignty by virtue of, for example, NATO is claimed to be a genuine pooling, but it is not, because it is possible to withdraw from it. The whole point about the European Communities Act is that it is not possible to withdraw from it except by repealing it in this manner. That is what we are doing now.
My hon. Friend has strongly emphasised the importance of the sovereignty of the House, and I agree with him. Is it not all the more important that, as we leave, this sovereign House should have a meaningful vote on the terms on which we leave, rather than there being a “take it or leave itâ€ vote at the end of the process? Is that not the ultimate expression of sovereignty, and will my hon. Friend therefore support it?
The answer is that I am supporting the outcome of the referendum, which, by virtue of our sovereign Acts of Parliament, we decided that we would pass over-
I had actually spotted that, Dame Rosie, and I am most grateful to you for confirming that I am in order. Let me now touch on some of the issues that arise from this continuous emphasis on the virtues of the European Court of Justice. There is the constitutional principle, which I have already explained, and there is the case law, which I have also already explained. But it goes further than that. The very great Lord Justice Bingham, in chapter 12 of his book “The Rule of Lawâ€, describes the relationship between the courts and Parliament. He comes down unequivocally in favour of Parliament. He makes it clear that when Parliament passes a Bill such as the one that we are to enact, it will override all the laws in the European system that have shackled us so far, and also all the Court judgments, save only that we have agreed, by virtue of the retained law, to transpose some aspects of the process to which we have become used, and which we can decide what to do with at a future date.
Will my hon. Friend give way?
I certainly will; I should be only too delighted. I have been waiting to hear from my right hon. and learned Friend, whom I happen to know very well, and for whom I have great respect. I shall listen to him with interest.
I do not think my hon. Friend can have it both ways. A moment ago, he was talking about direct effect. There is no doubt that if we leave the European Union, direct effect will cease on the day we go; but, as I am sure he knows, we are signed up to about 800 treaties with arbitral mechanisms that can lead to judgments affecting the United Kingdom, which we then undertake to implement, sometimes by changing our own laws. I do not quite understand why my hon. Friend has such an obsession with the Court of Justice of the European Union if its direct effect will be removed, although we will have to be subject to it during the transitional period as we are leaving.
I do not think that matter has been entirely settled, by any means. The hon. and learned Member for Edinburgh South West (Joanna Cherry) earlier referred to a lunch she was at, where it appears that she was told we were going to be subject to the European Court of Justice, and my right hon. and learned Friend has made exactly the same point. I have to say that there are serious questions about the nature of the European Court. The problem is that the European Court is essentially not an impartial court at all. It has never discharged the function impartially, and from the early 1960s it developed a range of principles, such as those of the uniform application and effectiveness of EU law, that it then expanded of its own volition into the general principles of the supremacy and direct effect of EU law over national law. These judge-made principles had no basis in the EU treaties until the Lisbon treaty, which my right hon. and learned Friend, who was then Attorney General, opposed. The fact is that until Lisbon-
Will the hon. Gentleman give way?
I am afraid not, as I really must proceed. None of these judge-made principles had any basis in the EU treaties, and the principle of the primacy of EU law is a judicial creation recently codified, and no more than that. However, because we have accepted judgments of the European Court under section 3 of the European Communities Act 1972, which we are going to repeal, we are saddled with this, and that is one of the things we are going to unshackle. Interpretation is done in the European Court by what is known as the purposive approach. In fact, as has been well said, there are many different purposes that can be in conflict with one another, and the methods of interpretation applied are anything but satisfactory. I therefore say to those who want to advocate the European Court, whether in the transitional period or in general, “Beware of what you wish for,â€ because the European Court can create havoc in relation to our trading arrangements.
If the hon. Gentleman is so opposed to the European Court of Justice, what is his dispute resolution mechanism going to be? Independent states need a dispute resolution mechanism where they cede sovereignty; they give some of their sovereignty and get some of somebody else's sovereignty. What is that going to be?
I shall conclude my remarks on this point. The European Court is seriously deficient in a whole range of matters. On the question put by the hon. Member for Na h-Eileanan an Iar (Angus Brendan Mac Neil), the idea has been put forward by Martin Howe QC, and I have put it forward myself in the House, of a system of jurisdiction that would be more in the nature of an arbitration, where there might be, for example, retired European Court judges or whoever, who would adjudicate-but on a bilateral basis, not on the basis of a decision taken by the European Court. It is possible to come up with a solution, therefore, but I do recognise the problem. We are now embarked upon a massive restoration of self-government in this country. This Bill is essential to achieve that, and should be passed without any of the obstacles and frustrating tactics being put in its way.
My right hon. Friend is making an important point. This morning, she and I both heard the Mayor of London clearly set out the implications of not having a security treaty for the safety of London, let alone the rest of the country, so I wholeheartedly agree with her points.
My hon. Friend is right. That was the evidence we heard. Parliament has a responsibility to have a contingency plan. Whatever it is that we hope might happen over the course of the next 12 months, we have a duty to ensure that we have plans in place for every eventuality and that Parliament itself can take some responsibility. Right now, with the Government's amendments made and without my amendment, it would theoretically be possible for us to just drift towards exit day without any substantive opportunity for Parliament to step in perhaps to amend the withdrawal terms in the Bill or maybe to require the Government to change their plan or to go back and negotiate some more. That would be up to us in Parliament to decide, but we will not get the chance to decide under the Government's current plans.
Has the right hon. Lady noted the sensible comments of the chairman of the Policy and Resources Committee of the City of London corporation? While an orderly Brexit might not be the desired outcome for the right hon. Lady and I, an orderly Brexit with a proper transition and with this House having a proper say is manageable for our financial services sector. However, a disorderly Brexit that was the result of our inability to extend negotiations for a short period if need be, for example, would be a disaster for this country and is regarded by some firms as being on the same level as the threat to cyber-security. On that basis, is it not foolish for the Government or the right hon. Member for Birkenhead (Frank Field) to try to put a leaving date on the face of the Bill?
I share the hon. Gentleman's concerns. As Select Committee Chairs, he and I have both heard evidence about security and wider issues, and I also share with him my personal views about the importance of having a transition period and a smooth process. To be honest, whatever people's views on whether there should be a transition and on how we should respond to different negotiating outcomes, it should still be for Parliament to debate and to decide before exit day, not after. That is what Parliament should be for. Frankly, the Government would be irresponsible not to give Parliament the opportunity to debate and take a view on the terms and on the timing once they have been agreed. There is a con in what the Minister said earlier, because the Government actually do recognise that there may be circumstances in which exit day has to be changed. The Minister said that clause 17 will not apply and that somehow it will not allow the Government to change the exit day through regulations after it has been agreed in the Bill, but that is not the advice I have had-it is not the advice the House of Commons Library gave me this afternoon, for example. In fact, the combination of clause 9 and amendment 383 will still allow Ministers to change exit day, if they so choose and if they think it appropriate. That is the impact of the Henry VIII powers throughout the Bill. We understand why Ministers might want a provision to be able to come back and say that exit day needs to change because we have reached the 11th hour, because the negotiations need to be extended by an extra month or because the process needs to be changed. Ministers have kept that power in the Bill for themselves, but why should the power be reserved just for Ministers? Why cannot Parliament have that power, too? That is the flaw at the heart of the Bill. If in unforeseen or difficult circumstances Ministers need to change the timetable, they can, but Parliament will have no choice, no say and no ability to do so.
Does the right hon. Lady agree that, if Parliament did have that opportunity, it would be taking back control and sovereignty would be returned not to the Executive but to this House?
The hon. Lady is right. We had all those debates about taking back control and parliamentary sovereignty, yet somehow the Minister seems to want to rip it all up. The Government are trying to concentrate huge amounts of power in the hands of Ministers, rather than giving the whole of Parliament a say. Ministers have to stop infantilising Parliament and treating Parliament as if it is the enemy. The truth is that the sky did not fall in because Parliament had a vote on article 50. The Government told us that it would, and they told us that the whole process would be stopped, but it was not stopped because each and every one of us understands that we have obligations and responsibilities towards the referendum result, just as we have obligations and responsibilities towards the negotiation process that the Government have to conduct on our behalf, and that we cannot directly conduct for them. We know that we have those different responsibilities, and we know that we have to take mature and responsible decisions given the complexity of the situation that faces every single one of us. We just do not think that those decisions should be entirely in the hands of Ministers; we think that the whole of Parliament should have a say on something so important.
My right hon. Friend is making an incredibly powerful speech and argument. Does she agree that having the vote and support of Parliament behind the Government and the action they take would strengthen the Government's hand in the negotiations with the European Union?
I agree with my hon. Friend, because this should be about the whole of Parliament, just as when we had the responsible debate on article 50. We know it is complex. It is our job and our responsibility in a democracy to deal with that complexity, and not just to abdicate our responsibility and hand it over to Ministers because, somehow, it is too difficult for us in Parliament to deal with. Of course it is not too difficult, and of course we are capable of dealing with the complex situation we face.
Does the right hon. Lady agree that we simply have not had the debates? That, of course, is not lost on the European Union, and it is also not lost on the people of this country. If we had those debates and if we had a real say on what Brexit will look like, we would begin to form a consensus and we would begin to bring people together across the United Kingdom in getting that good deal, reuniting so many divided communities, families and even friends.
I agree with the right hon. Lady. The truth is that the plans for our Brexit future have to be sustainable and have to command consent. The plans will have implications for many decades to come. They have to give us the chance to heal the Brexit divide across the country from the referendum, and they have to give Parliament the chance to debate the details and to have a proper, honest debate about what it will mean across the country.
Does my right hon. Friend agree that had things gone differently in last week's debate and had the information been laid before the House, emotions might not be running so high?
Clearly, we need more transparency. I want to draw my remarks to a close. My amendment gives Parliament the opportunity to indeed take back control. The hon. Member for Stone (Sir William Cash) said he wants us to debate in this House how we are governed. Well, then he should vote for my amendment, rather than concentrate power in the hands of Ministers. At a time when we have seen democratic values and democratic institutions undermined and under threat right across the world, we have an even greater responsibility to ensure that there is a proper democratic process and that we follow our obligations that come with the parliamentary Oath we took. So much of the debate we had during the referendum was about parliamentary sovereignty. What my amendment does is make that real.
I welcome the amendment tabled by the right hon. and learned Gentleman that would remove the Alice “Through the Looking-Glassâ€ absurdity of there being different exit days for different purposes. I was an early signatory to all his amendments because they are eminently sensible. The right hon. and learned Member for Rushcliffe (Mr Clarke) described entertainingly the reasons for the remarkable metamorphosis of the Bill, from one that allowed Ministers to name an exit day or different days by regulations into one that names a day and a specific time. It was a sop to the denizens of what he called the fourth row below the Gangway. Has the right hon. and learned Member for Beaconsfield reflected on what such a fundamental change signals to our partners in the European Union about how serious we are and how carefully we have thought through this crucial process?
The tendency of any Government, especially when they have such a major project on their hands, is always to try to manage the project and to manage Parliament. Has the right hon. and learned Gentleman discovered over recent weeks that the sad truth of the matter is that there is a consensus in the House that embraces all those on the Opposition Benches and a significant number of Government Back Benchers? It actually embraces half the Government-I can see at least three, possibly four, Ministers sitting on the Front Bench who would sign up to his amendment. Would not it be far more rational for the Government simply to calm down about this process and try to establish a consensus that can carry the country forward?
Was the right hon. and learned Gentleman alarmed, as I was yesterday, when, after mentioning to the Secretary of State that the Prime Minister had asked in September for a two-year extension-six months after she had triggered article 50 -he did not seem to have a clue when the EU 27 might possibly agree to it? Some of the media think that that extension will automatically happen, but, as we speak, there is absolutely no guarantee that we will get it. Is he alarmed that the UK might indeed find itself out because of its own actions in March?
There are massive uncertainties in all this, and I do not want to pile the gloom on the Treasury Bench. All I will say is that there are great risks. I do understand that the Government have an important point on this, but if that is the case, the proper dialogue that should be taking place between those on the Treasury Bench and the House is how we craft and alter this legislation both to emphasise the statutory process to be followed and to make sure that the only circumstances in which it is not followed-clause 9 has to be used as an example-is where it would be impossible to get an article 50 extension to enable the statutory process to take place before we go. If we do that, we will start talking sense in this House, rather than the polemical nonsense that we have been talking over the past few days.
When Czechoslovakia decided to form two countries with two Governments-a very complicated task-it took six months planning and was implemented over a weekend. Why does my right hon. and learned Friend think that the 16 months remaining is not enough time in which to reach an agreement or to reach the sad conclusion that an agreement is not possible in the mutual interests of both sides, and to do all that in an orderly way? Surely 16 months is more than enough time to sort this out.
I cannot help it that the reality is that we entered into a partnership that now includes 27 other member states. We cannot just magic that away; they all have their interests, and they will all have to be taken into consideration at the end. As we have seen with trade agreements that are reached with the EU and other states, they take time. Indeed, my right hon. Friend and some of my other hon. Friends are, frankly, delusional in their belief of the speed with which these wonderful new trade agreements with third countries will be concluded once we leave the EU. My main anxiety on that topic is that there are 759 external treaties that come through our membership of the EU and that we are in danger of losing with amendment 381, tabled by the Government, in respect of putting a writ-in-stone date on when we have to leave. That should worry us just as much as any other aspect of leaving the EU.
Is not the real ludicrousness of amendment 381 that it is unenforceable and there is no punishment if that law is broken? As a former Attorney General, will the right hon. and learned Gentleman tell us the point of having a law for which-if the date is extended and the law broken-there is absolutely no consequence? The Minister will not be sent to prison for breaking it. It is a worthless political gesture.
The hon. Gentleman's amendment refers specifically to a resolution of the Northern Ireland Assembly. There is not a Northern Ireland Assembly in place to grant such a resolution. While we hope there will be one soon, we surely have to countenance the possibility that we could get through to March 2019 still without one, so how would his amendment enable the European Communities Act to be repealed if there is no Northern Ireland Assembly to pass a resolution?
As I said, it is unclear to me what the situation is in Northern Ireland. I have heard the rumours, one way or another, that they are extremely close to a resolution other than on the Irish language- It is being motioned behind me that perhaps that is not the case. However, anything could happen. The principle of our amendments is that the democratically elected Assemblies in Wales and Northern Ireland and the Parliament in Scotland should have their say.
It is a constitutional convention of the utmost importance that legislative consent is given by all the devolved institutions, particularly on such a major constitutional change. The fact is that we have no Northern Ireland Assembly and no expectation of having one in the near future. However, even if I were to be surprised by the fact that the main parties-the DUP and Sinn Féin-could agree in an Assembly, the figures are such that the majority of the 90 MLAs are anti-Brexit and will not give legislative consent to this Bill. The Government's Bill is going nowhere without the legislative consent of Northern Ireland, and that will not be forthcoming.
I thank the hon. Lady for making that point. I am loth to stray into Northern Ireland politics for extremely clear reasons.
I would avoid it.
I take that advice. I say only that it has been suggested that some in Northern Ireland would surely see the Government's taking this decision with no Assembly in place as being the diktat of a governor general, or at the very least unwise as a basis on which to proceed. As I said, the elephant in the room is the question of who speaks for England. This is the last constitutional conundrum-the constitutional exceptionalism that successive Governments have failed to address in this place. Who speaks for England? Clearly on this matter, it appears that this Conservative Government do so. Are the Labour Opposition sanguine about that? I hope to press this amendment to a vote. I do not know how Labour will vote on it, but I remind them that their Labour colleagues in Cardiff are certainly not sanguine. The Minister may point to the resurrected Joint Ministerial Committee as a cover for-
Members will no doubt be aware that the Joint Ministerial Committee on EU Negotiations has met only twice in the past year. Does my hon. Friend agree that that Committee fails to afford the devolved Administrations a real voice in these negotiations and that in its current form it is wholly inadequate for the purpose of facilitating discussion and agreement?
I thank my hon. Friend for making that point. I was obviously about to come on to that matter. The Government might wish to use the Joint Ministerial Committee as a cover for proceeding with this matter, but so far that Committee has not proved itself to be a substitute for proper agreement obtained directly with the Welsh Assembly and the Scottish Parliament. The JMC-as obscure to many Members in this place as it is to the press and the population at large-met in February and did not meet again until October, during which period the most important and momentous events were taking place and fundamental decisions being taken. Following the October meeting, the Government sought to gloss over the real concerns of the Scottish and Welsh Governments, but as I said earlier, these have now been made clear. In the Brexit Committee on 25 October, I asked the Brexit Secretary what the formal relationship was between himself and the First Secretary of State, who is handling the JMC. I asked:“What is the formal relationship between your Department and his on this specific issue?â€He replied,“there is none at all. He is one of my oldest friendsâ€, to which I replied:“He is a very fine man, I am sure.â€I have been in this place for long enough-though not in government-to know the ways of Whitehall working. There are two conditions: where there is a formal relationship between Departments and there is accountability, and where there is no formal relationship and there is no accountability. In the case of the JMC, there is no formal reporting back but perhaps a chat between old friends. I have a large number of old friends-fine people whom I respect-but I certainly would not base my decision about the future of my children and my grandchildren on an informal fireside chat.
Does the hon. Gentleman agree that the crucial issue is not the one he deals with in amendment 79, but whether the Government respond to the cross-party amendments about the Scotland and Wales Acts and other important matters, in line with what the Scottish and Welsh Governments have said? Responding to those amendments in a positive way would show true respect for the constitutional settlement, which the Government have yet to show.
I am arguing in favour of my own amendment, but I accept the force of the hon. Gentleman's words. As he knows, we have supported several Labour amendments. Plaid Cymru has warned of the problems for quite some time. We wrote to the Welsh Secretary over the summer outlining our opposition to the withdrawal Bill and asking for answers about what would happen if the Welsh Assembly withheld consent. The response that we received in September was an aspiration, and it was wholly inadequate. It merely replayed the mantra: “We want all parts of the UK to back the Bill.â€ It was no response at all. We raised the matter during a general debate on Brexit and foreign affairs on 26 June, during Brexit ministerial drop-in sessions on 19 July, during the debate on the Queen's Speech on 26 July, in Welsh questions on 6 September, on Second Reading of this Bill on 11 September and during oral evidence sessions in the Brexit Committee on 17 October. Not once has a Minister told us how the Government plan to proceed if the devolved legislatures do not support the Bill. The only conclusion that we can draw, therefore, is that the Government will press ahead regardless. It is, after all, their legal right to do so, for the time being.
It would be absolutely fascinating if the Government pressed ahead regardless, against the backdrop of three out of the four Assemblies or Parliaments of the United Kingdom opposing such pressing ahead. That would really show that we were not in a union but in an absolute superstate, which is what many Members say they are trying to get away from.
Amendment 79 might elucidate that point, which the hon. Gentleman put well. The final step of trying to prise an answer out of the UK Government about how they will react if the devolved Parliaments reject this Bill is to gauge their reaction to the amendment, which calls for the Sewel convention to be legally binding in relation to the Bill. That is why, with permission, I will press the amendment to a vote. It already has the support of the SNP, the Liberal Democrats, the Green party and, I understand, at least one Labour MP. In my view, it would be unthinkable for Labour, which is the largest party in Wales, to oppose Wales having a say, contrary to the stance of their colleagues in Cardiff. If the UK Government are deadly serious about having all four nations on board, and if they are determined to respect the Respect agenda, they will accept the amendment. If not, we must assume that the Prime Minister intends to ignore the clearly expressed will of the National Assembly for Wales and the Scottish Parliament, breaking her promise of working closely with the devolved Administrations to deliver an approach that works for the whole UK. I urge everyone in this House to support amendment 79.
Clause 1 of this historic Bill is the most important constitutional matter to come before the House of Commons since the 1972 Act. I have read some of the debates that Parliament conducted at the time, and we could indeed say that the repeal is more significant than the House believed the original Act to be. When the original Act was passed, the Government reassured the House that it was no surrender of sovereignty to a supranational body and no major transfer of power. They told the House that it was, instead, a major development of a common market; that the areas in which the European Economic Community would have competence would be very narrow and limited; and that the UK would preserve a veto so that if the EEC proposed anything the UK did not like, the UK would be able to exercise its veto and show that Parliament was still sovereign. That was a long time ago. Over the years, what appeared to be a modest measure to form a common market has transformed itself into a mighty set of treaties and become, through endless amendment and new treaty provision, a very large and complex legal machine that is the true sovereign of our country. It has exercised its sovereignty through the European Court of Justice, the one supreme body in our country during all the time we have remained in the EEC and, now, the EU. We have seen how that body can now strike down Acts of Parliament, prevent Ministers from taking the action they wish to take and prevent this Parliament from expressing a view and turning it into action.
Will the right hon. Gentleman give way?
No, I am not going to take any interventions. I am conscious that we have very little time, and I want other colleagues to be able to speak in this debate. We have been unable all the time we have been in the EU to have our own migration policy or to decide who we wish to welcome into our country. We cannot have our own fishing policy and we cannot have our own farming policy. We have moved into massive deficits on both fishing and on farming, whereas we used to have a good trading surplus on fish before we joined the European Economic Community and we used to produce most of the temperate food we needed before the common agricultural policy started to bite. The British people decided in their wisdom that we should take back control, and we will take back control by the passage of this very important piece of legislation. Above all, clause 1 will take back that control. The great news for colleagues on both sides of the House who had different views on whether we should leave or remain is that their genuine passion for democracy, which many on both sides of the argument have expressed today, can be satisfied by agreeing to clause 1, which repeals the original Act. Once that has happened and the repeal has taken place, this Parliament will once again listen to the wishes of the British people and be able to change VAT, our fishing policy, our agricultural policy, our borders policy and our welfare policies in the ways we wish.
Will the right hon. Gentleman give way?
Will the right hon. Gentleman give way?
Is the right hon. Gentleman's implication that unless he is satisfied with an agreement he will not allow us to leave the European Union?
I have often taken part in such debates as these and felt rather in the minority in opposing a new European treaty, and I wonder whether I am still in a minority in the House today, as it probably has more remainers than leavers in it, which rather colours the judgment of those taking part in the debate.
Oh move on, for God's sake!
I just put that forward as a problem. I believe as passionately in my case as my right hon. Friend does in hers. I sympathise and understand, but we have to accept that the country voted to leave. The one thing we know about how people voted-whether it was for this deal or that deal, whether they believed or disbelieved this or that piece of propaganda-is that they voted to leave the EU. That is the one thing it said on the ballot paper. I cannot understand how anyone can come to the House and say, “Well, there might be circumstances in which I will not respect that decisionâ€, as the right hon. Member for Knowsley (Mr Howarth) just did. That is what it amounts to.
Sir Winston Churchill said that the role of an MP was to put country first, constituency second and party third. Does the hon. Gentleman accept that, if the Government come back with a bad deal, allowing it to go forward would put none of those three first?
That brings me to my next point. This debate is rerunning many of the arguments during the referendum campaign. The remain case was premised on the idea that it is a horrible, cruel world out there, that we cannot survive outside the EU, that it will be completely disastrous and that unless the EU give us permission and lots of help and support and agree to a whole lot of stuff we would like, we will be on our own in the cold. You know what? It is not true. Most countries are not in the EU and they are fine. This debate sometimes loses sight of that. I wish to speak in favour of clause 1 standing part of the Bill. I agree so much with my right hon. Friend the Member for Wokingham (John Redwood). This is the most important Bill since we joined-more important, in fact, because after 45 years of membership it is so much more significant than it was. The principle of democracy is that Parliament legislates and Ministers obey and implement the law. The problem with the EU is that it turned our Ministers into legislators. They go to Brussels, sit in council, legislate and then bring back fait accompli legislation that is then imposed on this House. The 1972 Act is the greatest Henry VIII clause that has ever existed, and there is something a bit inconsistent -I understand why they are saying it-in complaining about Parliament not being treated properly, given that the whole principle of our membership of the EU requires the removal of the House's right to make the laws of this country.
I note that the hon. Gentleman just said that it was wholly inappropriate for Ministers to go to Brussels and bring back a fait accompli. In relation to the EU negotiations, would it not be wholly inappropriate, therefore, for Ministers to go to Brussels, bring back a fait accompli and not give Parliament a proper opportunity to say, “You know what? You've got this wrong. You've got to renegotiate.â€?
I completely agree with the hon. Gentleman. The House should have the right to accept or reject the deal, and it will-it will have the right to reject or accept the withdrawal agreement and implementation Bill; but that will not change the decision to leave the EU. That decision has been taken. I turn to the date of our exit. The referendum said leave. We were all told that we had to use article 50. Article 50 says on the tin that it takes two years maximum. The date is already fixed. There is no choice about the date. The date has to be in the Bill, otherwise we will weaken our negotiating position.
I will make my point and then give way. The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.â€ That will not put us in a very strong negotiating position.
I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?
My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. It was my right hon. and learned Friend who used the word “hypothesisâ€. The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.
Will my hon. Friend give way?
I will, but I have been told to take very little time.
I am very interested in my hon. Friend's point about the fact that the date should have been in the Bill. It was an important point, so will he tell us why he did not table an amendment to insert the date?
Would I be telling tales out of school if I said that I had thought about it, and discussed it? In fact, there was plenty of friendly discussion about it, but in the end the Government decided the matter for themselves, and I support the Government. I think that, given that we are in a slight minority in this Parliament and we have to deliver a very difficult Brexit and take part in difficult negotiations, it is incumbent on all Conservative Members to support the Government whenever we can.
I completely agree with a vast amount of what my hon. Friend has said. Article 50 sets the date, but it also sets the process, and the last part of the process is a vote in the European Parliament. As I recall from my time in the European Parliament, it often asks for a little bit extra at the last minute. My concern about hard-wiring the date is that it makes it more difficult for our Government and the other 27 national Governments to give that little bit of extra time should it be needed. It loses our flexibility rather than giving us more. That is my only concern.
Unfortunately, even the European Parliament cannot change the exit date. It would have to be agreed by all the other member states. To predicate our negotiating position on our ability to persuade the 27 member states-and the Commission and the negotiating team in Brussels-to extend the date would be completely wrong. Any Members who intend to vote against this date must be really confident that they can change a date that has already been set by the European Union treaties. The whole point about the deal/no deal scenario is that-as I have already said to the right hon. Member for Knowsley-either we accept the deal, and the House votes on it, or there is no deal. That is the choice that is available to the House. The House cannot veto Brexit- I wish to conclude my speech. Any Members who voted for the European Union (Notification of Withdrawal) Bill are obliged to support the amendment, because that is the date for which they implicitly voted when they voted for the Bill, and for a two-year period. Any Members who voted for article 50 but now do not wish to fix the date are open to the charge that they do not actually want us to leave the European Union- Let me say this to my right hon. and learned Friend the Member for Beaconsfield. He has suggested that if we do not have a deal we will be jumping into “a voidâ€, and that fixing the date will constrain our negotiations and disenfranchise Parliament. I respect the sincerity of my right hon. and learned Friend's passion, but he calls the cut-off date barmy when he voted for that date by voting for the article 50 Bill. This amendment rumbles those who have not really accepted that we are leaving the EU.
My hon. Friend knows that I share his fundamental beliefs about the need for us to leave the European Union, but is there not merit in the suggestion of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that we need not have a fixed date? After all, our own negotiators might wish to have an extension; this is curtailing the flexibility and room for manoeuvre of our own negotiators. My right hon. and learned Friend has proposed an ingenious and commendable solution: that we write into the Bill the date, but we create exceptions for circumstances in which the negotiators might need it. I urge my hon. Friend, and all my hon. Friends who share my view on the EU, to reflect carefully on the suggestion made by my right hon. and learned Friend; it is a commendable one and it requires careful reflection.
I am still seized of the truth that if we beg the EU to extend the time because it has run us up against the timetable-after all, it is the EU that is refusing to negotiate on the substantive issues at the moment, not us-that is the position and responsibility it must face. We should be clear and strong that if the EU does not reach an agreement with us by a certain date, we are leaving without a deal. That would put us in a stronger negotiating position than ever.
Will the right hon. Gentleman give way?
I will give way later, perhaps to people who have not had an opportunity to intervene. I want to make a bit more progress. I do not know whether the new clause tabled by the right hon. Member for Birkenhead (Frank Field) was politically inspired, but it is clear that the amendment tabled by the Secretary of State, which we have heard a lot about over the past 72 hours, was very much a political initiative.
I will give way once.
As I think the right hon. Gentleman should, given what he was imputing. The new clause was politically inspired, of course, because I wanted to see a date in the Bill. If he is suggesting that someone else was directing the kind of new clause I should table, he might want to have a word with the Opposition Whips to find out how easy a job that is.
I thank the right hon. Gentleman for that intervention, but I am perplexed: I was not suggesting that anyone had been pulling his strings. I was simply wondering whether it was his own political inspiration that had led him to table the new clause. However, both the new clause and the Government amendment are damaging and irresponsible. They are also pointless, in that the Government could, of their own volition, choose to change the end date. I have to wonder whether they would not in fact seek to do that if they were close to a deal just days or hours away from the deadline.
Does the right hon. Gentleman not accept that we are coming out of the EU and that this is not a game of hokey-cokey, with one foot in and one foot out?
We do not often play games of hokey-cokey in this Chamber, and I certainly would not want us to do so today. We are debating what is without a doubt the most serious issue that the United Kingdom has faced in the past 50 years, but I am afraid that the Government are not conducting themselves terribly efficiently. The Prime Minister's amendment secured one or two newspaper headlines, but I was pleased that it did not succeed in stemming the Tory resistance. I would like to encourage the use of the word “resistanceâ€. I do not know whether many Members have read Matthew Parris's article, in which he suggests that we should use the term “resistanceâ€ in relation to ourselves when some Conservative Members prefer to describe us as remoaners-or, indeed, traitors.
On that point, I am happy to give way to the hon. Gentleman.
I would not call the right hon. Gentleman a remoaner, but he is a Liberal Democrat; I am just wondering which bit of the democrat in him does not accept the result of the referendum, that 52% of the country voted to leave and that the Prime Minister made it absolutely clear that we would leave if that is what the people voted for. Let me remind him that 41% of his constituents voted for him, whereas 52% voted to leave the European Union. When is he going to ask for a rerun in his own seat?
I am sure that what I am about to say to the hon. Gentleman will reassure him that I am a democrat. He will be aware of the Liberal Democrats' view that the only way that the vote on 23 June last year can be undone is by means of a referendum of everyone in the country, some of whom might have changed their minds. Perhaps he would like to explain why the people have the right to express their will on this particular issue only once and never again. We, as democrats, are arguing that there should be another opportunity-
I am not going to give way, because other Members want to speak.
I will give way to my hon. Friend.
Does my right hon. Friend agree that there seems to be a fundamental lack of understanding about democracy? Democracy is not fixed in stone; a decision that has been made once does not have to last for ever and a day. Indeed, our parliamentary democracy is based on people being able to vote every four or five years and perhaps vote for something else. The referendum should not be seen as forever fixed in stone.
Indeed, although the hon. Member for Stone thinks that our democracy is very much set in stone on this issue. Interestingly, when the hon. Member for Harwich and North Essex (Mr Jenkin) was asked what would happen if, 12 months from now, 90% of the population felt that a mistake had been made on 23 June 2016, he seemed to say that we would proceed regardless and completely overlook any change in public opinion. The Liberal Democrats will clearly oppose new clause 49, but one thing I learned during the debate is that the right hon. Member for Birkenhead is apparently not an ardent Brexiteer. I was surprised to learn that, but I welcome the fact that things are evenly balanced for him. However, I was a bit worried to hear him say that we did not need more facts; it is actually quite important to have facts and not necessarily always to act on one's gut feelings.
The right hon. Gentleman completely misrepresents what I said, which was a hypothetical. Does he really believe that the British people are going to change their minds? It may be a pious hope but, if anything, leave would win by a far bigger majority if there was another referendum.
The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there. I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily. As for the Government's position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors-certainly by all the businesses that I have met-about the impact of no deal. If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute's processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be. I am happy to support Plaid Cymru's amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far. If we have a vote on clause 1 stand part, I will certainly be ensuring-
Will the right hon. Gentleman give way?
I am happy to give way.
Like the right hon. Gentleman, I am sceptical about clause 1 standing part of the Bill, because it asks Parliament to agree to sweep away the whole body of the 1972 Act without knowing what on earth will replace it. It asks us to embark on that journey without knowing the destination. Conditions should be placed on the repeal of the 1972 Act. For example, we should have a treaty with the European Union before the repeal is allowed to take place.
I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly. In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.
It has been a pleasure to listen to this wide-ranging debate, but I do not intend to summarise it, and nor do I have the time to do so. I did, however, want to do something that the voice of my fellow Under-Secretary, my hon. Friend the Member for Wycombe (Mr Baker), would not allow him to do, which is to respond to the amendment standing in the name of the hon. Member for Arfon (Hywel Williams), who is not his place, and which has been supported by a number of Opposition Members. My hon. Friend rightly spoke about how the Bill was about continuity, certainty and control, and that matters to every part of the UK. The hon. Member for Arfon and those who signed his amendment know that we are committed to securing a deal that works for the entire UK-for Wales, Scotland, Northern Ireland and all parts of England. There is considerable common ground between the UK Government and the devolved Administrations on what we want to get out of this process, and we expect the outcome to be a significant increase in the decision-making power of each devolved Administration. But we are clear that no part of the UK has a veto over leaving the EU; we voted in a referendum as one United Kingdom and we will leave as one United Kingdom. This Government have already shown their commitment to the Sewel convention-
What the Minister has said is very important, and I am listening carefully. Has he sent a signal this evening that he is prepared, and the Government are prepared, to ignore the requirement of the legislative consent of the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly in order to get their way with this Bill? Is that the signal he has sent?
The hon. Lady pre-empts my next point. What I would say before making the point about Wales and Scotland is that of course we all want to see a Northern Ireland Assembly in place and functioning, with power sharing, so that it can give assent to this Bill. The Government have already shown their commitment to the Sewel convention, demonstrated through its inclusion in the Scotland Act 2016 and the Wales Act 2017, and we are seeking legislative consent for this Bill in the usual way.
I am afraid I cannot give way again at this point. We want to make the positive case for legislative consent and work closely with the devolved Administrations and legislatures to achieve this. Crucial to understanding this Bill is the ongoing work on common frameworks, which has been mentioned, determining areas where they will and will not be required, which will reduce the scope and effect of clause 11. We acknowledge that that work on common frameworks will be crucial to the consideration of legislative consent.
So the position of the UK Government is that if three of the four legislatures of the UK oppose this, he will ride roughshod over them. This is not a Union; it is a superstate. We are not in a Union; we are in superstate. The only superstate in Europe is the United Kingdom.
Would the Minister concede that one man's veto is another man's respectful disagreement?
In this debate, many Members expressed worries about democracy. Although the hon. Member for North East Fife (Stephen Gethins) is totally opposed to the position I set out, his was a stunning speech. If people with such abilities can be returned to this House, I do not think we have to worry too much on that front. The right hon. and learned Member for Beaconsfield (Mr Grieve) accused me of simplicity. I hold his abilities in higher esteem than he holds them himself. Sometimes, though, choices are clear. There is a clear choice about how we negotiate with the group we are facing in Europe. Amendments are necessary, but because the Government, without the fingerprints of anybody else, have tabled an amendment stronger than my new clause, I beg to ask leave to withdraw the motion.
I beg to move, That the clause be read a Second time.
If we do not have a transitional period after exit day and find ourselves moving to substantially different arrangements and a new set of alliances with member states of the European Union, we may have great turmoil in our economy, with a significant number of jobs moving to other jurisdictions. Most people in this debate-apart from the fabled hardliners on the fourth row back below the Gangway on the Conservative Benches-now accept that a transition is needed. The Prime Minister made that point in her Florence speech. However, if hon. Members look very closely at the Bill, they will see that there really is not much in it about the transitional arrangements. Exactly how it will take place has very much been left up in the air. New clause 14 seeks clarification from the Government about how a transition will be put in place and operate. It simply calls for a report to be made by Ministers one month after the Bill has received Royal Assent to clarify a number of things. Principally, the report would clarify the question how retained EU law will be interpreted during the transitional period, and by extension, how the relationship with the European Court of Justice and many other aspects will operate during that period.
I very much support the new clause, but does the hon. Gentleman share my incredulity at the fact that the Government have not simply said, “Yes, of course we need to inform businesses and regulators about how retained EU law will be reinterpreted during the transitionâ€? It is very odd that they have not recognised that this very basic and self-evident thing needs to be done.
I suspect that that is because the Government are struggling to get such a transition. They have admitted that one is necessary, which is a good step. In her Florence speech, the Prime Minister made that concession. In fact, it is probably the biggest single negotiating input that we have seen from the Government since the triggering of article 50. I have been talking to businesses and I know many hon. Members have done so, and we are hearing that if they do not have some clarity by January or February, they will have no choice but to put in place contingency plans for a no deal and the fabled cliff edge that we would reach at the end of March 2019. This goes beyond the financial services issues, because it applies to a number of sectors of the economy. We need to make sure that we have some certainty. That is why so much is on the shoulders of the Prime Minister in the December European Council meeting, when we are told that we might get some movement from the European Union on this issue.
My hon. Friend is making an excellent point about the transition. A whole series of amendments have been tabled on this issue, and I wholeheartedly support his new clause. Are the businesses he has spoken to not already having to make very difficult and costly hedging decisions because of the uncertainty caused by the Government and, indeed, the siren call from the small number who want us to go off the cliff into a catastrophic, no deal Brexit?
The hon. Gentleman has listed a series of issues, each of which is a legal issue. How does he suppose we could delegate to the Government a prerogative power to decide how the courts could decide those issues?
My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill. I invite hon. Members to turn to page 3 and read clause 5(1), which states:“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.â€Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.
The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.
It's not meant to!
My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights-does it not?-the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.
The right hon. and learned Gentleman is entirely correct. The whole purpose of Committee scrutiny is to try to get some sense out of what is a very complicated set of arrangements. In some ways, the Bill was drafted in an era pre-dating the Florence speech, when we were moving from state A to state B-in other words, from pre-exit day to post-exit day. Of course, the Prime Minister has now accepted that there will be a transition, so a new interim period has been floated, but no legal architecture has been proposed for it at this stage. The Secretary of State for Exiting the European Union yesterday floated the idea of an Act of Parliament that would also include details about implementation at some indeterminate point, potentially after exit day. New clause 14 seeks clarity from Ministers. They must set out in more detail precisely what would happen to the legal framework in that transitional period.
Does my hon. Friend share my astonishment at the answer to my question this afternoon about what the legal basis for the transition period would be? Does he agree that the Government have succeeded in minimising their room for negotiation by fixing the exit day and maximising legal uncertainty and that the one thing that business has been calling for is legal certainty before Christmas?
As my hon. Friend says, I am starting to wonder whether the Government will reverse ferret a little bit on the fixed date. We will wait and see-I think the vote will come up on day eight. It is obvious that it has not been as thought through as it should have been.
My hon. Friend is making some excellent points. Various businesses in my constituency and unions have pointed out the need for, and the benefits of, a transitional period. Does he, like me, feel that because of the Government's actions we are sleepwalking towards a no-deal scenario that would have a catastrophic impact on our economy?
I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.â€ We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.
I share the hon. Gentleman's and the Prime Minister's hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.
Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government-I will give way to them if they will guarantee it-that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.
Just to reinforce the hon. Gentleman's question: the Bill seems to say that after exit day all European law and legal obligations drop and the jurisdiction of the ECJ goes. If we have the transition period proposed in the Florence speech, the subsequent Bill will presumably have to amend this Bill, change the Government's position and produce new provisions that qualify it. Given that the Florence speech seems to be the only policy we can cling to-it is agreed to by both Front-Bench teams, in theory-would it not be logical just to put the substance of that speech into this Bill and adjust it so that it complies with it?
The right hon. and learned Gentleman and I have shared this inspiration in the form of an amendment that will also come up on day eight of Committee. Of course, the Labour Front-Bench team will shortly be talking to their own amendment 278, which seeks to deal with this problem by deferring exit day until after the transition has been completed. The idea essentially is to keep the existing legal framework in place, not just for the period up until exit day but for the transition period. That, of course, is one way to solve the problem. The Bill, though, cannot adequately deal with the transition, and not just because of the contradictions in clauses 5 and 6. Even if one stands on one leg and squints a little bit at the order-making powers in clauses 7 or 9, none seems capable of dealing with the implementation of a transition period. It is clear, then, that we need answers from Ministers. They have said that they will bring forward a Bill, but they have to ensure certainty for business during the transition period. It could be a two-year-plus period. I do not think that two years is long enough, but if it is to be two years, that is still a long time for businesses to operate without a framework of legal certainty. New clause 14 simply says that Ministers must give details within one month of Royal Assent as to how the ECJ arrangement will apply during the transition.
Is it not clear, from what has been said in Europe and by business, that they want the transition deal to be the same as what we have now, with all the same obligations, so that they do not have to go through two sets of changes?
That is absolutely the preference of most sensible observers. We need a transition, of course, because the trade deal arrangements cannot possibly be made adequately by the time of exit day, unless the Secretary of State for International Trade pulls a rabbit out of the hat-perhaps he has been known to do that in the past, but I doubt it will happen this time. The transition period is therefore vital if the UK is to salvage and stitch together a trade arrangement. We must not forget, moreover, that the 57 existing free trade arrangements with non-EU countries from which the UK benefits by virtue of our EU membership will have to be grandfathered-copied and pasted into UK arrangements. The right hon. and learned Member for Beaconsfield (Mr Grieve) talked about the 759 different international treaties. We do not know quite how those will apply. We have to think about the legal framework not just after but during the transition. We have a massively complex set of legal steps to take, yet we have no clarity from Ministers, apart from this concession yesterday that there might be a Bill at some point, possibly after exit day, perhaps with a vacuum-
indicated dissent.
I will give way to the Minister, if he is saying no. If I understand him correctly, he is going to introduce and enact the promised Bill well ahead of exit day. I will give way to him if that is the case.
indicated dissent.
Well, the Minister proves my point. We need a report from the Government very soon after Royal Assent to answer this question. New clause 14 is a very gentle, soft amendment that I hope will nudge the Government into answering that question.
A transition implies moving from one place to another. If we write into statute the date on which we are to leave, industry and the economy will wake up the next day and find that we are out of the jurisdiction of the European Court of Justice, out of the customs union and out of the single market. That is not a transition but an overnight crash. The Government say that we will then make a further transition and then pick up the pieces, like the Road Runner hitting the ground and having to pick himself up afterwards. This is not an orderly transition; it is, by any definition, a car crash. Does my hon. Friend not agree?
Yes. There are massive risks, and if we do not have an orderly transition, there will be big consequences. However, although we have identified 29 March 2019 as a key date, there is another critical date, which will fall in the first quarter of the next calendar year. Many businesses are saying that they must have certainty about what the shape of the transition will be by that time. The clock is ticking much more swiftly than Ministers may have appreciated. We need to know that they are rolling up their sleeves ahead of the European Council, which begins on 14 December. We may just complete the Committee stage during that week, but it is vital for businesses to have certainty, and it is also vital for Ministers to explain how aspects of the transition will take place. In a way, it would be disloyal to the Prime Minister for them not to do so.
My hon. Friend has mentioned the concern felt by businesses. That concern is widespread, ranging from the Confederation of British Industry to the Federation of Small Businesses. It is also felt by the workers and their representatives, including the TUC and many individual trade unions. Why on earth are the Government being so stubborn?
We can only speculate. There was even a suggestion at one point that Ministers had not yet broached the topic of transition with their counterparts in the EU and Michel Barnier. Thankfully the Prime Minister raised it in her Florence speech, and I hope that her Ministers are now getting it under way, but we need more certainty and clarity. There is a serious period-two years plus-during which legal arrangements must be put in place. It is not unreasonable for the House to ask Ministers to clarify the position at the earliest opportunity, and certainly by the time the Bill receives Royal Assent.
My right hon. Friend raises a very important issue, and it is not just a transitional issue; it is a rule of law issue, and is about legal certainty. My right hon. Friend is absolutely to raise it, and she may agree with me that the Government are going to have to deal with this, because ultimately it is a fundamental principle of law that people should be able to have that certainty when they commence actions.
My right hon. and learned Friend, who is also my constituency neighbour in Buckinghamshire, knows that I have been preoccupied with this for some time. Of course, there is also that principle of UK law called legitimate expectation, which is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power, and I think that that is most important. Essentially, this principle ensures that the rules cannot be changed halfway through the game if an individual had a reasonable expectation that they would continue. Changes to UK law can only happen prospectively-in other words, they can only apply from a point in the future onwards-and cannot be applied to the past. This means that anyone lodging court proceedings can do so knowing that the rules that applied at the time they lodged those proceedings will apply to their case. If that was not so, the law could be retrospectively changed in favour of the state.
My right hon. Friend is making a most powerful case, and I absolutely agree with her about the need to deal with the Francovich issues. She serves as a member of the Parliamentary Assembly of the Council of Europe, as I did in the past; does she agree that to leave people without a remedy in these cases, and to breach that important rule of law of legitimate expectation, would hardly be consistent with our people being given their full entitlement under our commitments as part of the Council of Europe?
My hon. Friend served with great distinction on the Council of Europe and I am thrilled to have been put back on the Council of Europe today, along with several colleagues across the House. I happen to think that this is extremely important, as is our membership of the Council of Europe, and my hon. Friend is right that that situation would be looked at with some suspicion by the other 46 members of the Council of Europe. For that reason, it is important that if we change the law through this Bill, changes that result from the Bill only apply from a point in the future, so that individuals can rely on the law as it stood up to the point when the law changed.
I am sympathetic to the arguments the right hon. Lady is putting forward. Following on from the intervention of the hon. Member for Bromley and Chislehurst (Robert Neill), does the right hon. Lady agree that if people's legitimate expectations and right to an effective remedy are withdrawn as a result of Government action, those individuals might have cause for action against the Government under the European convention on human rights?
The hon. and learned Lady makes a valid point. I am trying to give the Government an opportunity to examine this, as I think it is very serious. I also think that no British Government would want the sort of unfairness thrown up by the anomaly that has arisen from the way the Bill is drafted. In fact, the repeal Bill already states in paragraph 27(3) of schedule 8 that actions begun prior to Brexit, including Francovich, can continue and can rely on EU legal principles. However, I think there is an error in the Bill, in that it does not allow anyone who has commenced an action prior to the day of exit the right of a reference to the European Court, which they could have reasonably expected when lodging their claim in the court prior to Brexit.
That must be wrong as well. In the past, when we have had references to the Privy Council, for example, and a country has terminated those references, the references have continued after the date of termination until all the cases going through the system are completed. It must follow that references to the ECJ-or CJEU, perhaps, to give it its full title-must be able to continue after the date of exit.
My right hon. and learned Friend makes the same point that I am trying to make. Likewise, the Bill does not allow anyone who has suffered harm because of an act of the state in the period prior to the day of exit the right to lodge a claim under the rules as they stood at the time they were harmed.
This is incredibly important for my constituents who could face issues relating to HS2, because a right of claim could arise between now and exit day, whenever that is set to be, and it is vital that their rights should not be changed during that period.
My hon. Friend is leading me down a path that I do not wish to go down. I was very much hoping that I could make my contribution today without mentioning HS2, but the trouble is that if I do not mention it, someone else will. In fact, I agree with her entirely. To deny people those rights would be an abuse. A retrospective removal of rights breaches the principle of legitimate expectation, because individuals have a reasonable expectation that their grievances should be heard under the rules as they stood at the time they were affected. For this reason, I am proposing these minor amendments to the Bill. I do not believe that they would undermine the overall effect of the Bill; rather, they would give legal certainty to those who were caught in the transitionary period. Anyone who has a claim originating in the period prior to Brexit should be able to have their claim heard under the rules as they stood prior to Brexit, including a right to a reference to the European Court. That is only fair and just. The British people voted for Brexit to improve their rights and the rights of their fellow citizens. They did not vote to cause legal confusion or harm, or to frustrate the rights of those relying on the courts during the transitionary phase.
Will the right hon. Lady give way?
I would like to finish now. As the Bill already states that cases occurring during the transitionary period can continue, my amendments would do nothing other than ensure that that happens fairly. I really hope that the Government will respond positively to these amendments, and remember that justice delayed is justice denied.
I get the feeling that the cart is coming before the horse here. No transitional implementation has yet been agreed. It has to be part of a deal, and it would be a mistake for the House to start putting things into the Bill in the expectation of certain things that may or may not happen. That is why my right hon. Friend the Secretary of State for Exiting the European Union announced a separate Bill to implement any agreement, which is when such things will be dealt with. This Bill is much simpler than the Opposition would like it to be.
There are some strands of fair comment in that intervention. We have tabled the amendments precisely because, in relation to our previous debate, we do not want the Government closing options down. If the jurisdiction of the Court of Justice is not clear during a transitional period, options would be closed down.
Will the hon. Gentleman give way?
No, I will not. I gave way many times during the previous debate, and I am conscious that many more amendments relate to this clause.
Will the hon. Gentleman give way on his point about the Court of Justice?
I have said no. I want to give others the opportunity to speak. I took every single intervention in the previous debate-except perhaps from one of my hon. Friends towards the end of my speech-so I want to make some progress. The Government have a choice to make today- I wish hon. Members would stop chuntering. The Government have a choice to make, and they have to make it in relation to our amendment 278.
You're scared to have to answer.
Oh for goodness' sake. The hon. Gentleman can do better than that, even from a sedentary position.
Just take my right hon. Friend's intervention.
Is not part of the problem that this is an area of law that has quite a political-with a small “pâ€ -aspect? In reality, this law has been entrenched when it comes from the EU, and it represents a number of areas that have been treated by some as fundamental rights. The difficulty for the judiciary is that they will be asked to continue interpreting this law-this is the nub of it-without real political guidance as to what emphasis they should attribute to it in future in light of the emphasis it has been given in the past. It is not just any old law but something rather more complex and, for that reason, it is more sensitive to the judiciary's interpretation.
The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306. I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period. We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law. Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman's name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister's clarification. We support amendment 358, which would help with the interpretation of EU retained law. I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.
It is a great privilege and pleasure to speak on behalf of the Government on this essential Bill, and particularly on clause 6 and the various amendments proposed to it. The Bill is complex, but at root it boils down to achieving two basic but fundamental objectives, which it is worth bearing in mind as we consider the clause and amendments. The first is that we are delivering on the referendum by taking back control over our laws, which is a major opportunity; that was the No. 1 reason why people voted to leave the EU in the referendum. The second thing that the Bill does is make sure there is legal certainty, with a smooth transition for citizens and businesses, mitigating one of the key risks of Brexit, which I believe is felt by people whether they voted leave or remain.
It is essential that the Supreme Court has certainty. The first part of clause 6(2) is admirably clear:“A court or tribunal need not have regard to anything done on or after exit day by the European Courtâ€. Why then have the Government included the following phrase at the end of the provision:“but may do so if it considers it appropriate to do soâ€? I think Lord Neuberger has a point, and I give the Minister an opportunity to make the Government's position clear.
I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend's point. Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court-an affirmation of the supremacy of our own courts and our own legal order.
My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?
First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised. The point I was making before my right hon. Friend's intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.
May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions-common law, around the Commonwealth and elsewhere.
A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.
I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.
The Prime Minister has accepted that in a transitional period, the European Court of Justice would govern the rules of which we are part. Will the Minister explain to the Committee how that is compatible will clauses 5 and 6, which say that the ECJ will have no further sway after exit day, which the Government propose to set as 29 March 2019? Do the Government intend to amend the Bill as it proceeds through Committee to reconcile those two things, or do they propose to do it in the new Bill that the Secretary of State announced yesterday?
I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.
Will the Minister give way?
If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that-
Will my hon. Friend give way?
I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled. I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty-I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all-and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union's pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.
Will my hon. Friend give way?
I am going to make a little more progress, but I will give way to my right hon. Friend in due course. The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court-and, indeed, the High Court of Justiciary in Scotland-will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way. We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.
The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally-
They are not!
They are. It may not be agreed by Eurosceptics, but that is Government policy, supported by the official Opposition. Why is it not in the Government Bill?
I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.
Let me finish my point. Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.
I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?
I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal. I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.
I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not boundâ€. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?
I am not quite sure that I understand my right hon. Friend's forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.
Can I not tempt my hon. Friend to give way?
My right hon. and learned Friend is very tempting, but not at this moment. I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.
On the issue of potholes, will the Minister give way?
On the issue of potholes, I give way to my hon. Friend.
I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?
The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House-whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.
I will not claim credit for all the ingenuity of the drafting, as I hope I shall make apparent in due course, but what if I told my hon. Friend that it is based on the work of the International Regulatory Strategy Group-one of the most distinguished groups of practitioners in this field? Would he think again about totally dismissing the thing, recognise it as a serious point that needs to be addressed here and engage with it?
I absolutely will not dismiss it. I am happy to think twice, thrice and as many times as my hon. Friend wants to talk to me about it. But let me make a couple of points to illustrate the risk of uncertainty that his amendment would cause. Subsection (A3) of amendment 357 begs the question of whether retained EU law restrains acts or omissions that start within the UK but that may have effects outside of it. Equally, subsection (A5) conflates functions conferred on public bodies with those of the Secretary of State. They are not the same thing. I sense that, underpinning this, he is trying to legislate in advance for unknown unknowns. I understand that temptation but if we go down that path, there is a countervailing but very real risk of increasing, rather than mitigating, the legal uncertainty. With respect, I hope that he can be persuaded to withdraw his amendment.
In order that I might reflect on that as the debate goes forward, perhaps my hon. Friend would like to give me an example of the circumstances in which he thinks my amendment might increase the legal uncertainty, rather than assist it. I will obviously listen to that.
Rather than seek to confuse the issue, it would be helpful if the Minister clarified whether it is the intention of the Government to accept the jurisdiction of the Court of Justice of the European Union during the transitional period. Yes or no?
The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty's Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty. My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear-I think this addresses the hon. Gentleman's point-that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK. Our priority must be getting the right arrangements for Britain's relationship with the EU for the long term.
Will the Minister give way?
I have given way to hon. Gentleman before. I am going to make some progress. That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption. That is why we want early agreement on the implementation period-on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.
I actually agree-I should make this clear to my hon. Friend-about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.
I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.
I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.
I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?
I understand the point that my hon. Friend is making, although I do not accept that characterisation. It is absolutely right that cases that are procedurally before the dock of the court, if I may put it like that-that have been lodged before exit day-will continue to conclusion. However, in relation to facts that may or may not give rise to a cause of action at an indeterminate point in the future, we would end up with a long tail of uncertainty if we went down the path that she suggests. I gently say to her that it will be possible to continue those cases before the UK courts because of the way in which we will retain EU law. There would be more, not less, uncertainty for citizens and businesses alike if we allowed the kind of indeterminate access to the court that she suggests.
Surely, the Minister is ignoring the legitimate expectation that I have talked about. Frankly, if the Government do not look again at the matter, it will constitute an abuse of power, because it will remove from individuals rights that they legitimately expected to carry through to the end of a case.
My right hon. Friend makes an interesting point about legitimate expectations. I think there is an equally legitimate expectation, demand and need to have some finality to the legal and institutional arrangements that give rise to cases before the European Court.
Will the Minister give way again?
Perhaps I can give way to my right hon. Friend when I come on to her amendments. I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.
Will the Minister give way?
May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that“the Supreme Court is not bound by any retained EU case lawâ€. It seems to us that he can have it one way or the other, so which is the governing clause-the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied-purposively-or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?
I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?
I am going to make some progress.
I may be able to assist the Minister with the explanatory notes.
I am following the Minister's arguments very carefully, with helpful interventions from some of my colleagues. I appreciate that this is a very tricky matter, but it does relate to my constituent. I am therefore grateful that the Minister has undertaken to take the proposal away and look at the principle in relation to this case, because I feel that it would be most unjust not to do so. I have no love for the European Court of Justice and I want the Bill to go through, but not at the cost of justice for my constituent. This case has thrown the matter into stark relief. I am grateful to the Minister for that undertaking and I look forward to talking to him further on the matter.
I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings. I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them. The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.
Will the Minister give way?
My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?
My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns. To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.
I am loth to interrupt my hon. and learned Friend, who is making a powerful case for legal certainty, but does she agree that a wide range of industries and other organisations will need legal certainty, certainly around freedom of movement, such as our education sector and food and drink sector? Does she also share my concerns about the reports that have come from the Financial Times this evening that the Secretary of State for Exiting the European Union says that bankers and other professionals have been promised a special post-Brexit travel regime? If we are going to have freedom of movement and the benefits that brings, we should not just be protecting the bankers.
I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here. To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress. We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.
Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?
I will just finish my point, then I will give way to the hon. Gentleman. The Institute for Government took the view that that approach was compatible with the objectives set out in the Government's White Paper on Brexit and in the repeal Bill.
I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Lawâ€, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?
I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do-although I might actually prefer a Scottish constitution. As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government's position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.
I am listening with great care to the hon. and learned Lady. She will agree that references to the Court of Justice are made by the courts to interpret a particular provision of EU law, not by individuals. That is an important difference that I am sure she will appreciate.
The Solicitor General is absolutely right to correct my rather loose use of language. My point is that the majority of references made to the Court of Justice are made as a result of litigation between individuals or businesses to determine their respective rights rather than, as the Government's position paper suggested in the summer, between the United Kingdom and the EU. That is not my view; that was the evidence of Professor Sir David Edward, who gave evidence on this topic to the Scottish Parliament in September. He was keen to impress on people that EU law is about the determination of individuals' rights.
That interchange was quite correct, but does the hon. and learned Lady also accept that the process of making those judgments is where the Court of Justice has widened the interpretation of the treaties by using individual cases that were sent to the Court for clarification?
That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman's real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself. Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals' rights. If the UK's courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.
Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.
I asked a couple of days ago about this idea of an arbitration court. Now that the right hon. Gentleman is here, will he clarify how it would be different for ordinary people in the street in comparison with what the ECJ is currently doing?
My right hon. Friend makes an important point, but I wish to emphasise that my own concern is not about retaining EU law in some way, but about getting some clarity, which is certainly not in the Bill. My right hon. Friend may agree that from listening to the Government it does not appear that they are particularly concerned about this matter-yet the judiciary plainly is, and the House cannot ignore that.
I agree with my right hon. and learned Friend. It is important that during this and future debates-we will have the opportunity to return to this issue in the debate on clause 5-my right hon. and hon. Friends in the Government take due regard of this issue. The courts have already said that they are unclear and want clarity. It is not always usual for courts to come back and say that they want us to decide, but on this matter they really do. That is important, because there has to be a future point at which they understand that they do not have to have regard to any change in the European Court principles. I urge my right hon. and hon. Friends in the Government to make that point very clear in the course of this process, and I look forward to their response. I think the Minister, my hon. Friend the Member for Esher and Walton, said that he would return to this issue in the discussions on clause 5, and I would certainly appreciate that. I know that other Members wish to speak, so I shall conclude. I applaud and support the Government on this part of the Bill. For me, and I think for most of our colleagues, it is the most important element. We can debate money and all these other issues, but who ultimately decides on our laws is the most important element of the vote to leave. I made this point earlier, and I conclude by making it again: the single issue on which the British public voted most was to take back control of their laws. I want that to happen as we leave the European Union.
Does my hon. Friend not find it extraordinary that so many Government Members, including those on the Treasury Bench and at the Dispatch Box, have deviated from the position set out so clearly by the Prime Minister in her Florence speech? She said that during the implementation period-transition in everyone else's terms-the existing structure of EU rules and regulations would be in place to provide the certainty that she has described. That is not what we have been hearing this evening.
No, my hon. Friend is absolutely right. The problem is this dissonance between the content of the rules and the enforceability of the rules. I just want to stress this point about the impact on exporters. In the Minister's description of how the transition period and the future might pan out, there seemed to be no acknowledgement that, in addition to some of these disputes and rights that citizens will be claiming, whether they are under competition law or in the single market, there will also be citizens in this country making claims in the other European countries, or the other 57 third-party countries. In order to export, these countries need to have more certainty about their data protection-we will come on to that another day-about professional recognition, particularly the services, about licensing and about passporting. If those rights are not enforceable, they will be losing that certainty. At the moment, we have a situation in which half the exports of this country go to the European Union, and 30% go to the other 57 countries in which the EU has negotiated the legal framework. We are talking about 80% of this country's trade and this Government are not able to tell us what the legally enforceable base will be during the transition period. The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) said that it would be very nice if we could have a new arbitration system. Well, I am sorry, but that does not seem to be on offer. At the moment, there are three possibilities. One possibility is continuing with the ECJ, but the Government have set their face against that. Another possibility is to join the European economic area, but the Government have set their face against that. The third possibility is to crash out. The option of the bespoke arbitration system with the European Union will be extremely difficult to negotiate in the 15 months that we have left before the transition period begins.
With so many organisations and bodies, such as the judiciary, businesses and the Law Society, talking about the uncertainty that comes from clause 6, does my hon. Friend not agree that it is very challenging to believe the Government that this will be all right on the night when an alternative dispute mechanism would need to be created, designed, drafted, legislated for and in place before we leave the European Union?
My hon. Friend is absolutely right. It is not just one alternative system; it is 58. It is one with the EU and another 57 with everybody else. This is really not going to happen, and Ministers need to get their heads round the fact that they have some hard choices to make, and they need to be straight with their own Back Benchers and with the public about what those choices are. The Government are being irresponsible in wanting to repeal the European Communities Act 1972, which is the basis of our membership, and in setting the date at the beginning of the transition period, before they can tell us how they are going to handle that period. It would be great if they could give us a proper explanation because we have not had one yet. Ministers say that the whole purpose of the Bill-the very thing that the Bill is driving at-is legal certainty, but they cannot tell us what the legal position will be in 18 months' time. The Bill is flawed and I urge Ministers to look constructively at the amendments tabled by the Opposition Front Bench.
The hon. Gentleman rightly points out that a transition deal is required and that the Prime Minister's Florence speech said that that would be on the basis of the jurisdiction of the European Court of Justice, and the EU institutions have also said that it has to be on the basis of the ECJ. With that remarkable degree of alignment between the British Government and the EU, should we not now get the Government to confirm once and for all that the transition deal is on the basis of ECJ jurisdiction?
I must confess that I do not see what some people's difficulty is with the jurisdiction of the ECJ for a short period. At the end of the day, as everybody concedes, there has to be an arbitral mechanism. I rather agree that it will be difficult to invent one in time, and there may be alternatives, but, as the Justice Committee's report in the last Parliament pointed out, the involvement of the ECJ in these areas is often extremely limited in terms of the overall amount of our jurisprudence in the courts. It would be foolish to rule out accepting it for a limited period to see us through transition. Let me move on to the specific points here. We do need to pick up on certain areas. We have to have greater clarity on the interpretation of retained EU law. With every respect to Ministers, I do not think that the Bill will achieve that in its current form, although I think that it can, with further work.
Like my hon. Friend, I am keen to see that one of our major industries is preserved. Is not the overwhelming merit of his amendments 357 and 358 that they would preserve the Government's ability to modify the regulations but give certainty on day one because they would deliver a functioning set of rules that could be on the statute book and would therefore take into account some of the cases he mentioned earlier? The key thing for the financial services industry is to have that certainty on day one.
That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier. Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve. These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and The CityUK, and I am indebted to the Remembrancer's Office of the City of London corporation for the drafting of these amendments-it takes the credit for the ingenuity.
I absolutely take the spirit in which these amendments are made, and I am grateful to the Remembrancer's Office, but does my hon. Friend not agree that we need to be cautious? He thinks that this general interpretive approach will, of itself, amend deficiencies, but does the fact not remain that we would still have to amend deficiencies in legislation, even with these otherwise helpful-looking provisions?
Is not the overwhelming advantage of this rule not that it would put any legal constraints on an authority but that it would allow flexibility to co-operate, making it more likely that we would achieve an equivalent regulatory solution more quickly?
That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets-regulatory equivalence will be critical to achieving that-and it would do so without the risk of facing any inappropriate legal constraints on the UK's own operations once we have left. I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day. Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.
For the sake of clarity, I think that my hon. Friend will find that schedule 8(25) contains enough scope for other documents of the type that he mentions to be considered by the courts. I hope that I have given him enough reassurance on that point.
I am listening with care to my hon. Friend. Will he accept from me that there is another danger, namely that by using too many prescriptive words in the Bill, we could fetter the discretion of the courts in a way that they would find equally unacceptable? There is a balance to be struck here.
There is, and that is why it is all the more important-perhaps unusually so-for Government to talk quietly with the judiciary to find out what they are saying. They cannot compromise their independence, but those of us who are in touch with them want to make sure that the Government understand the root of their concerns. I am sure that there is a constructive way forward on that. I know that the Solicitor General will be aware of the problem, because it was referred to in the Justice Committee's report in the last Parliament. I also draw his attention to the concerns raised by Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, in the evidence that he gave only a couple of days before he retired from that post. He gave a pretty clear steer on the sort of thing that could be helpful and posited various types of language. I hope that the Solicitor General accepts that we need to look further at the matter, and I hope that we can do that constructively as we take the Bill forward.
Many of my constituents and the businesses in my constituency have raised the importance of a transitional period. The UK transition will inevitably bring with it changes to the way in which goods and services are traded between the UK and the EU, and, although businesses on both sides are beginning to anticipate and plan for change, the scope and nature of the changes are as yet unclear. The consequences could range from moderate to significant disruption to current rights and freedoms. The issue goes far beyond banking and impacts on any business that sells goods or services between the UK and the EU. The negotiation of a new future relationship is a process separate from the article 50 negotiations, and at present there is no indication that a new long-term agreement on trade and services will be in place at the point of exit. Businesses in the UK and the EU face three unknowns: what the future will look like, when the arrangement will be in place and what will happen in the period between the end of the current EU framework and the start of the future framework. That is why transitional arrangements are essential to avoid a damaging cliff-edge effect at the point of exit. Businesses, customers and regulators will need time to adapt and settle into a new framework. A transition period would reduce the risk of businesses making potentially premature decisions about the structure of their operations. This is why negotiating and embedding transitional arrangements in a withdrawal agreement between the UK and the EU would give both sides a greater degree of visibility and certainty in planning for the future. Clause 6 of the Bill makes it clear that the UK courts will not need to keep even half an eye on the case law of the ECJ. In legislative terms, this is as clear a statement as we can get that the UK courts will not have to follow ECJ decisions, directly or indirectly, post-Brexit.
My right hon. Friend is making a powerful case, as always, for equality. Does she agree that co-operation on issues such as female genital mutilation, human trafficking and other gender-based crimes should also be included in the exit agreement?
My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend. I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.
Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.
I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends. We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.
It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate-as did not happen after Second Reading-the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried. It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:“the principle of the supremacy of EU law continues to apply...so far as relevant to the interpretation, disapplication or quashing of any enactmentâ€. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation-namely, the power to quash an Act of Parliament. It does not get higher than that.
I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.
With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.
What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
I understand exactly where my right hon. Friend is coming from. I have to say that my reading of this was that once the Supreme Court had departed from the jurisprudence of the European Court of Justice in a particular case, thereafter the Supreme Court's jurisprudence would be the one that the lower court would have to follow. However, that does not get us past the problem that the Supreme Court is provided with no guidance whatever about the purposive nature of EU law and how it should approach it.
Let me deal with my right hon. and learned Friend's helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court's rulings is to apply-which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law-that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted-as I am sure it will be, in the House of Lords-to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.
I understand the words“in accordance with any retained case lawâ€in clause 6(3)(a), but I do not understand the words“any retained general principles of EU lawâ€. That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.
No, no.
Notwithstanding the chuntering of my right hon. Friend the Member for Broxtowe (Anna Soubry)-and she is a friend of mine, but she is quite wrong about these issues-I happen to agree with my hon. Friend. My point is, however, that it does not matter nearly so much which side of the argument we are on as that we should be clearly on one side or the other. I feel sure that the reason clause 6(3)(a) says that the court should judge“in accordance with...any retained general principlesâ€is exactly the reason that was cited by the former Attorney General, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). As we see in clause 5(2), the purposive and teleological nature of the judgments, and the ability of those judgments to be used to quash even Acts of Parliament, should apply to the way in which our courts continue to interpret retained law. That, I think, is the intent of clause 6(3)(a). This leaves us with the wide-open, yawning question of whether the Supreme Court should be making judgments when it is, we are told in clause 6(4)(a),“not bound by any retained EU case lawâ€, but should nevertheless apply the general principles, and try to use the same purpose and teleological reasoning that the ECJ uses. We are not told, and the judges are not told. Far from creating legal certainty, clause 6 seems to me to create the largest possible degree of legal uncertainty. That is not a tolerable position. It is not one that the Government wish to achieve, and not one that the Opposition wish to achieve. I do not believe that anyone in the House of Commons wishes to achieve it. However, it is what the clause, as currently drafted, achieves.
The right hon. Gentleman is absolutely right to point out issues that need to be clarified as soon as possible, which is why new clause 14 says, in a very polite way, that it would help everybody if the Government, within one month of Royal Assent to the Act, could publish a report explaining in proper detail how EU retained law applies in that transition period.
The hon. Gentleman did not allow me to intervene on him, but let me say now that, unfortunately, his point is wholly irrelevant to clause 6; it relates to the transition which will be covered in another Bill. My concern is about the continuing state of UK law following exit. This is not going to be resolved by the Government producing a White Paper. It has to be resolved by clause 6 being drafted in a way that creates the very legal certainty that the Government so admirably wish to create, and which they at present so abundantly fail to do.
My right hon. Friend is asking some very interesting questions, but that does not necessarily mean-he, or indeed any of us in this Chamber, not being a judge-that he is drawing the right conclusions. He is pointing to several questions that need to be raised, however, although he has not mentioned that clause 5(1) states:“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day,â€and that must include this Bill. Furthermore, my right hon. Friend has not quite taken on board what the Solicitor General said with respect to our application of the stare decisis method of interpretation, which the Supreme Court will be obliged to apply after exit day. So he is asking some interesting questions, but I do not think we can necessarily draw conclusions from them.
I am grateful to my hon. Friend for his comments, and I am very happy to leave it to the Government to draw the conclusions and answer the questions in due course. I do not think clause 5(1) helps at all, however, because my hon. Friend is right that it excludes the possibility of subsequent enactments being subject to the principle of supremacy, but in clause 5(2) it is equally clear that, so far as the retained law is concerned, the principle of supremacy remains, and therefore there may be judgments in the future that already existing law, where there is judged to be a conflict between an Act of Parliament and an ECJ ruling, should have the result that the ECJ ruling triumphs over the Act of Parliament. That is a perfectly possible and sensible position to adopt. It is not one my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) and I would like to see, and I doubt that my hon. Friend the Member for Stone (Sir William Cash) would like to see it, but it is nevertheless a perfectly tolerable position-and it then needs to be carried over for the Supreme Court just as much. My point remains, however, and it is a simple one: that if the Bill is trying to achieve a hierarchy here, it needs to state what the hierarchy is, and in stating that hierarchy, it needs to make it clear who governs whom. At the moment, the Bill does not do that.
It is a pleasure to follow the right hon. Member for West Dorset (Sir Oliver Letwin), who, in uncharacteristic fashion, had to knock several lumps out of his own Front Bench to get it to see sense around some obvious problems with clause 6. I have chosen to rise at this point in the evening to pick up on some of the inconsistencies and flaws, revealed during this debate, in the insufficient-in some cases, absent-replies from the Government Front Bench. My hon. Friend the Member for Sheffield Central (Paul Blomfield) asked the Minister very clearly whether the jurisdiction of the ECJ will apply during the transition period. I do not believe the Minister has addressed that, but I am happy to give way if he would like to do so now.
The hon. Gentleman was not here for large parts of the debate; if he reads Hansard, he will see that that was addressed very squarely.
For the benefit of viewers who have just tuned in on BBC Parliament, I am happy to give way to the Minister a second time if he would like to state very clearly for the record whether, in his view, on that fundamental point, the jurisdiction of the ECJ will apply during the transition period. It is a very simple question and it only requires a yes or no answer, but he will not respond.
I will certainly give way to my hon. Friend.
I suspect that the Minister has been taking lessons from the Foreign Secretary. He says that we should read Hansard, but perhaps we will find a giant lacuna there, and perhaps these issues will come back to haunt him.
I have to agree with my hon. Friend, but I am happy to be generous and give way to the Minister again. This is a very simple yes or no question.
The hon. Gentleman is very kind, but neither he nor the hon. Member for Ilford South (Mike Gapes) has been in here for the entirety of the debate. This issue has been addressed squarely. We are not going to pre-empt or prejudice-
I am not sure that the Minister had a chance to finish his point, and I would be happy to give way again so that he can answer this central question. It is a simple question. The reason why the issue is so problematic is that many of us have been listening carefully to the concerns being expressed in many sectors of our economy about the uncertainty surrounding Brexit. We have heard a simple message: that the biggest risk to this country's economy at this time is uncertainty. If the Government want to reassure those sectors of the economy-manufacturing businesses with supply chains in the European Union, for example, or financial and professional services worried about whether contracts will still be honoured and upheld or whether jobs and activity can be relocated-they could give those industries the central message that during the transitional period, the existing structure of EU rules and regulations will apply.
Perhaps I may assist the hon. Gentleman. I was present during the debate when the Minister addressed this question and, so far as I can remember, he did not answer this perfectly straightforward question at all.
I am grateful to the right hon. and learned Gentleman. I am sure that if he did not hear a clear answer, most other Members did not hear one either. This is a golden opportunity for the Minister to answer the question. The Secretary of State has now arrived in the Chamber. Perhaps he will be able to help the Minister out. The simple question is whether, during the transition period, the European Court of Justice will still have jurisdiction in the way that it does at present. Can the Secretary of State give us clarity on this one point? This is a simple and fundamental question- Come on!
Ah, the real power behind the throne! I will give way to the hon. Gentleman.
I am grateful to the hon. Gentleman for giving way. The answer ought to be perfectly clear. If we are still under the jurisdiction of the European Court of Justice, we will not have left the European Union.
I am grateful to the hon. Gentleman for setting out in the House today the consistent view that he has held throughout the referendum campaign and during the debates that have followed. The Government have a fundamental problem. This is not about whether it is the will of the House that the ECJ should have jurisdiction during the transitional period. I think that most Members, whether they voted leave or remain, understand the central importance of giving business certainty right at this moment about what will happen when we leave the European Union. The Prime Minister understood that when she made her speech in Florence, in which she said that, during the transition period,“the existing structure of EU rules and regulationsâ€would apply. She also said that we could agree“to bring forward aspects of that future framework such as new dispute resolution mechanisms more quickly if this can be done smoothly.â€The implications are clear. It was the Prime Minister's view in Florence that, to provide business with the certainty that it needs now about jobs and economic activity, we would remain in the single market and the customs union and, necessarily, under the jurisdiction of the European Court of Justice for a time-limited transition period.
Is my hon. Friend as puzzled as I am that Ministers are unwilling to support the policy of the Prime Minister? The Prime Minister made her position very clear, when answering a question from the right hon. and learned Member for Rushcliffe (Mr Clarke), that the writ of the European Court of Justice would run during the transitional period, or at least at the start of it.
I am just as bewildered as my right hon. Friend. Many Members may not have seen it, but the front page of The Daily Telegraph tomorrow carries a splash entitled “The Brexit mutineersâ€. On that front page, Members will find people such as the right hon. Member for Broxtowe (Anna Soubry), the hon. Member for Bromley and Chislehurst (Robert Neill), the right hon. and learned Member for Rushcliffe (Mr Clarke) and other Conservative Members who have done nothing else during the course of this debate but try to get the Government to a position whereby we leave the European Union in a way that provides the most clarity, the most certainty and the most stability, which is in the interests of our economy. Actually, as my right hon. Friend the Member for East Ham (Stephen Timms) mentioned, the real Brexit mutineers are not people such as the right hon. Member for Broxtowe because, ironically, the Members on that front page are upholding the principles of the Florence speech. The real Brexit mutineers are members of the Prime Minister's Cabinet, and they are in the Department for Exiting the European Union and in the Foreign and Commonwealth Office. Those people are the real Brexit mutineers, and they should be explaining why they are not prepared to back the clear positon set out by their own Prime Minister.
Does the hon. Gentleman share my concern that what he describes is a blatant piece of bullying that goes to the very heart of democracy? None of the people who have been named-I take it as a badge of honour-want to delay or thwart Brexit; we just want a good Brexit that works for everybody in our country. That is not a lot to ask for in a democracy.
I wholeheartedly agree with the right hon. Lady. I know that she is not someone to be pushed around. In fact, when I looked at the front page of The Daily Telegraph, I saw a whole range of principled Conservative politicians with whom I have a number of disagreements, but I look to them as distinguished parliamentarians who always act in what they believe to be the best interests of their constituents and their country. That brings me to the central challenge at this point in the Brexit negotiations. Manufacturing firms with supply chains in the European Union are having to make decisions now, before Christmas, about jobs and activity and about whether to renew contracts or sign new ones. The clear message from financial services and professional services, the concerns of which the hon. Member for Bromley and Chislehurst has attempted to address through his amendments, and from other leading sectors of our economy is that unless there is a clear sense of direction and some reassurance about the rules of the transition period and how it will operate, they will be forced to activate contingency plans as early as now and before Christmas, but certainly into the first quarter of 2018. The clock is ticking, and time is running out. In muddying the waters during the course of today's debate, Ministers have done nothing at all to reassure businesses that are hovering over activating their contingency plans.
I completely agree with my hon. Friend about the importance of certainty, and I support what he says about the transition. Does he agree that what is crucial for certainty is ruling out a no-deal, catastrophic Brexit, about which so many people are worried? Many businesses in my constituency are now hedging against it, because they are fearful of the consequences.
I wholeheartedly agree. We hear this fallacy that those of us who warn about a no-deal Brexit are somehow willing to sign up to any kind of bad deal-as if there is a bad deal that could possibly be worse than no deal. I would like to hear an intervention from anyone on the Government or Opposition Benches who can explain how crashing out of the European Union over a cliff edge with no deal-meaning an immediate end to all existing contractual and legal obligations and to all the frameworks and protections, a hard border in Ireland, and the end of our trading agreements not only with the European Union, but through the European Union to countries across the world-could be worse than any kind of transitional deal. No deal would be the very worst deal, and it is astonishing that there are Government Members who not only entertain the possibility of no deal, but are enthusiastically encouraging it with the views that they put forward. There have been many problems with the Prime Minister's approach to Brexit, but in the Florence speech she tried to set out a practical and flexible framework through which we could now give certainty to business about the transition period and, crucially, through which there would be only one set of changes from our membership of the European Union to our future relationship with it once we leave. This evening, the Government Front-Bench team have driven a coach and horses through the Florence speech. They cannot provide business with the clarity it needs on how the European Court of Justice will operate during transition. They ought to support our position, which is to remain in the single market and the customs union for the time-limited period of transition, because that would give business the certainty it desperately needs. For Conservative Members to put their ideological vanity against the best interests of the British economy is selfish, reckless and irresponsible, and people should have no truck with it.
We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.
I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.
I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transitionâ€ pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be-not today.
Oh, perhaps I am wrong. I will give way, of course.
I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.
Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.
On a point of order, Dame Rosie. On the yesterday's selection list-and, in part, today's-there are some extremely helpful references to the page numbers of this enormous wodge of amendments. Would it be possible for the Clerks to be good enough to put the page numbers on the selection list for easy reference, because it is sometimes quite difficult to find the amendments at short notice?
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Dame Rosie. I will speak to new clause 58. Clauses 2 to 4 provide for the preservation of EU and EU-related law post-exit day in a new category of law, retained EU law, which itself comprises three principal sub-categories. Clause 2 provides that existing domestic legislation that implements EU law obligations remains on the domestic statute book after exit day. This will be known as EU-derived domestic legislation and includes, for example, secondary legislation enacted under section 2(2) of the European Communities Act 1972 for the purpose of implementing EU directives. Clause 3 converts direct EU legislation into domestic legislation at the point of exit. This covers EU law, such as EU regulations and decisions that have direct effect in the UK because the UK is an EU member state, but which would fall once the UK is no longer bound by the treaties. Clause 4 provides that any remaining EU rights and obligations that do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties that are sufficiently clear, precise and unconditional as to confer rights directly on individuals. The purpose of new clause 58 is straightforward. It is to ensure that retained EU law, as preserved in clauses 2 to 4, in five key areas-employment, equality, health and safety, consumer and environment-is accorded a level of enhanced protection that it would otherwise not enjoy from delegated powers contained in Acts of Parliament other than the one before us today.
I am grateful to the hon. Gentleman for allowing me to make an early intervention. For clarification for those of us who represent constituencies in Northern Ireland, is it intended by the Labour party that these amendments would extend to Northern Ireland? If so, what consultation has the Labour party had with any of the political parties in Northern Ireland about the content of the amendments?
With all due respect, that issue will be more prominently dealt with during the days of debate on devolution. I understand that EU retained law will apply across the United Kingdom. In the respect that I set out, new clause 58 is broadly similar in its intent to new clauses 25 and 55, both of which have as their primary purpose the prevention of modification of retained EU law save by primary legislation or by subordinate legislation made under this Act. If pushed to a vote we would be minded to support either of those new clauses. The array of rights, entitlements, protections and standards that we currently enjoy as a member of the European Union are underpinned by EU provisions. They either have direct effect as a result of the treaties or are protected in delegated legislation under the ECA. Either way, they currently enjoy a form of enhanced protection as a result of this underpinning. After the UK has left the EU, that enhanced protection will fall away. The Opposition have repeatedly emphasised that Brexit must not lead to any watering down or weakening of EU-derived rights, particularly rights and standards in the areas of employment, equality, health and safety, consumer and environment. Working in conjunction with our amendments relating to clauses 7, 8, 9 and 17 that seek to limit and constrain the sweeping Executive powers contained in this legislation, new clause 58 seeks to guarantee that rights, entitlements, protections and standards in these areas are not just transposed and maintained, but are effectively protected thereafter.
My hon. Friend is making some very important points. I, too, support new clause 58 and the provisions in new clauses 55 and 25. New clause 58 makes a clear point about the protection of equality rights. In the light of the wonderful news that came overnight from Australia about marriage equality, does he agree that it is crucial that we send out a signal to the LGBT+ community in the United Kingdom that we respect their rights and will retain them?
The hon. Gentleman is making a powerful case. Does he agree that if we are to have the deep and special relationship that Ministers say they want with the rest of the EU, we have no choice but to continue to harmonise our standards on employment rights, equality, and health and safety? Even if they were not good things to do in their own right, which they are, it will be crucial to keep those standards at the same level as the EU or higher if we are to have that kind of trading relationship.
The hon. Lady makes a good point. Of course we will need to do that, and businesses will have to comply with those standards. That is why we need to ensure that the EU and EU-derived rights we have are underpinned by an enhanced status. We will then need to move on to the conversation-which we will have to have-about how to stay in some form of regulatory alignment, if we want the type of deep and comprehensive deal that I think both sides envisage.
I have been listening carefully to the hon. Gentleman's speech. Does he accept that so many of these rights existed before we joined the EU and will still be there after we leave the EU? They are not, and need not be, dependent on the European Union. It is this place that will and can safeguard those rights.
The hon. Gentleman may have missed my point. I completely accept the fact that these rights will be brought into UK law, that they will not be underpinned by EU provisions and that many of them were there first and have been added to over the decades of our membership. What we are talking about here is ensuring that retained EU law cannot be chipped away at by secondary legislation-that it has an enhanced status and must be amended only by primary legislation debated in full in this Chamber.
The hon. Gentleman is right. It is the curiosity of this legislation that laws that the public, if we were to raise these issues with them, would regard for the most part as being of very considerable importance are being brought to the lowest possible status on their return here, and without there really being an opportunity, for obvious reasons, to revisit this issue domestically in a way that might lead us to enact fresh legislation.
Does my hon. Friend agree that, given the political events of this year, it has become ever more uncertain who the Government might be in the future? Therefore, all of us have the job of protecting the process and the institutions of our democracy, because we never know what might happen in the future.
I agree with that, and I agree-I think this was also my hon. Friend's point-that the public will expect these rights to continue to have the protection they have enjoyed while being underpinned by EU law. These rights should not have a reduced level of protection in the future.
I will make a little more progress if that is all right. Let me remind the House of the sentiments on the Government Benches when it comes to workers' rights. Throughout the referendum, prominent leavers drew attention to what they claimed was the high cost of EU employment regulations, including those such as the working time directive and the temporary agency work directive. Prominent members of the Cabinet are on record as having called for workers' rights to be removed. For example, the Foreign Secretary has written that we need“to root out the nonsense of the social chapter-the working time directive and the atypical work directive and other job-destroying regulations.â€During the referendum, on 18 May 2016, the then Minister for Employment, the right hon. Member for Witham (Priti Patel), went so far as to call for the UK to“halve the burdens of EU social and employment legislationâ€in the event of Brexit. The newest member of the Brexit ministerial team-Lord Callanan-has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and“all the other barriers to actually employing people.â€Just this week, the hon. Member for North East Somerset (Mr Rees-Mogg) made a speech in London calling for, among other things, deregulation. It was retweeted and then hastily deleted, as we heard yesterday, by the Department for International Trade.
I wonder whether the hon. Gentleman is about to quote Mr Dyson. When leave supporters wanted to quote a business, it was usually Mr Dyson's or JCB. Now that Mr Dyson welcomes the fact that leaving the EU means he will be able to hire and fire people more easily, I wonder whether they will quote him quite so often.
I was not going to quote Sir James Dyson, but the right hon. Gentleman has, happily, added to my remarks.
I am flattered that the hon. Gentleman pays such close attention to my speeches. I was talking about regulation in the City of London, not employment regulation. I think there is now consensus across the political firmament that employment regulations will remain in place, which is one of the reasons why his new clause is not necessary.
I am happy to be corrected on that point, but I would say to the hon. Gentleman that it is a bit rich to suggest that the many public pronouncements that have been made on employment rights over many years by so many Conservative Members have been forgotten entirely and that Conservative Members are suddenly the champions of enhanced workers' rights. We do not believe that, which is why we need legal safeguards in the Bill.
I am going to make some progress. It may be the case that pragmatism and electoral appeal trump ideology, but there is no guarantee, and that is the point. We should not take risks with rights, standards and protections that have been underpinned by EU law. Hard-won employment entitlements, along with entitlements relating to the environment, health and safety, equalities and consumer rights, should not be vulnerable to steady erosion by means of secondary legislation outside of the powers contained in this Bill. In future, Ministers should be able to change the workers' rights and other rights that came from the EU only through primary legislation, with a full debate in Parliament. On that basis, I urge hon. Members on both sides of the House to support new clause 58.
On a point of order, Dame Rosie. Yesterday's selection list meant that it was not possible to debate the amendments on the customs union or on the European agencies. I do not say this as a criticism of the Chair-obviously, a selection has to be made-but these are extremely important areas of European law, which, as the current schedule stands, we will not now have an opportunity to debate. However, the Government did say that they were prepared, if need be, for extra time to be given to the Committee stage in the House. How might we facilitate securing more time to debate these extremely important issues?
It is a pleasure again to be able to participate in this debate. The new clause in the name of the Leader of the Opposition raises a really important issue about the way in which the Government have approached the whole question of retained EU law. To be clear at the outset, and it is worth repeating, the Government's aim-to bring EU law into our own law, retain it there to ensure continuity and then, over time, to take such steps as this Parliament wishes to take to replace it or change it-makes absolute sense. But as we discussed yesterday, the difficulty that arises is that the origins of EU law mean that it has come into the law of this country in ways that are totally different from our usual process of primary and secondary legislation. Does my hon. Friend the Member for Stone (Sir William Cash) wish me to give way? I thought that he said something from a sedentary position.
Not yet.
I said, “That's why we are leavingâ€, in response to my right hon. and learned Friend's comments.
I understand that that is why my hon. Friend thinks we should go. As he knows, I personally think that in the globalised world in which we operate, as we mentioned yesterday, the notion that the only source of law is likely to be the domestic Parliament of one's country is rather fanciful, given that we are currently subordinate or have signed up cheerfully to all sorts of areas of international law without any difficulty at all. I accept, without wishing to go over old ground, that the way in which EU law operates in this country through its direct effect does pose some issues that have particularly exercised my hon. Friend the Member for Stone. Nevertheless, the idea that all sources of law in this country come from this House is wrong, full stop. The question is how we make sure that in bringing this law into our own law, we preserve its essence-because that is what the Government say they want to do-until such time as we as a domestic Parliament decide that we want to do something about it. The problem that has arisen is that, as currently drafted, the importation of EU law means that standards in areas such as equalities and the environment will no longer enjoy the legal protection that EU membership gives them-indeed, they will, for the most part, be repealable by statutory instrument. On the whole in this House, we would not think it appropriate to do that with our own primary legislation, and this legislation is undoubtedly important enough to have primary status. That is because clauses 2 to 4 on retaining most EU-derived law are worded in such a way as to turn it principally into secondary legislation in United Kingdom law.
There seems to be an inconsistency in what my right hon. and learned Friend is saying. He has been happy for law to come into this country and become our senior law having been approved by a qualified majority vote in which the British Government may have voted against, but he would object to its being repealed through a statutory instrument subject to a parliamentary process in this House and the other place.
I fully appreciate that my hon. Friend has a great distaste for the way in which this law has been imported into our country during the course of our membership of the EU. However, two wrongs do not make a right. He could profitably look at the prolonged period of time it is going to take to replace all this law-five years, 10 years, 20 years, 30 years? I would be prepared to have a small wager with him that some of this is still going to be around in three or four decades to come.
My right hon. and learned Friend concedes that two wrongs do not make a right. May I point out to him that the introduction of qualified majority voting was an achievement of the Thatcher Government? We persuaded the European Union to adopt the single market because we did not want small countries to be subjected to little pressure groups holding up very important standards that we needed to achieve in the new market we were creating. Mrs Thatcher sent as her commissioner Arthur Cockfield, who presided over several thousand of those being introduced so that the single market could get under way.
My right hon. and learned Friend is entirely correct. If I may explain, I was simply attempting-although I sometimes find it quite difficult-to put myself into the position of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who had explained his distaste. Having done so, I was trying to explain why he should still be concerned. I could not agree more with my right hon. and learned Friend. I am not troubled by the way in which this law has come into our country. We have kept our sovereignty. We made a choice to do this, and we did so because of an awareness of how, as international relations develop, it was in our national interest. That may represent a philosophical difference, but as I pointed out, there is all sorts of international law out there that binds us that did not originate in this Chamber. We should be concerned about the fact that these laws matter. I do not know whether they matter to my hon. Friend the Member for Stone or other hon. Members, but if we go out into the street and ask people whether equality law-
I accept that my right hon. and learned Friend has considerably greater knowledge of these matters than I do, so I wish to ask him about a more general point. I take on board his detailed points about how law is made in this place. However, does he accept that we have very good laws that were made outside the EU-for example, the health and safety legislation that was made domestically in our Parliament? With regard to Labour Members saying that we are not concerned with workers' rights-
Does my right hon. and learned Friend agree with me on that point?
I do. I entirely accept that it is within the wit and ability of this House in future to replicate, if we so desire, many areas of law that currently come from the EU, but at the moment we do not have time to do that. We are taking in law that really matters to people out in the street. I suspect that the vast majority will have no idea where this law originates from; they will just say, “Actually, my employment rights are rather important.â€
Will my right hon. and learned Friend give way?
No, I will carry on for the moment and then give way. People will value that law, and yet we are bringing it in and giving it a status that I regard as very unsatisfactory. There are a number of ways in which that could be addressed, including new clause 2, which has been tabled by the Opposition. I have tabled new clause 55, which I will briefly explain. It looks at the nature of retained EU law, establishes a general presumption that retained EU law may be amended only by primary legislation or subordinate legislation made under the Bill that we are enacting, and provides a framework for the Government to stipulate specific provisions of retained EU law that are merely technical, and therefore appropriate to be amended by subordinate legislation. I do not have any objection to that happening, but the rest would have to be dealt with by primary legislation. The new clause would provide much greater legal certainty about powers for future amendment of retained EU laws, and it would give the Government flexibility to amend technical provisions quite freely.
Given the concerns in the House, will my right hon. and learned Friend tell us which party introduced such legislation in the 19th century?
Yes, indeed: the Conservative party did precisely that. There is a proud record in the Conservative party-as, indeed, there is in the Opposition-of contribution to that process. I make it quite clear that I do not put the smallest imputation that those on the Treasury Bench, or on any of my colleagues in government, want to reduce those protections one bit.
I want to put on the record that I have a lot of sympathy with the idea of an enhanced sifting scrutiny process, as my right hon. and learned Friend knows. I am glad to note that he puts an emphasis, which I am sure we all agree with, on primary legislation. The only question that I want to raise with him about his earlier remarks concerns his enthusiasm for the manner in which the legislation was made in the first place. I make the point yet again that it was done, to an extraordinary extent, behind closed doors and by a process of consensus that cannot possibly be justified.
I understand where my hon. Friend comes from, in view of his long-held concerns about these issues. But I ask him to consider the fact that one consequence of our EU membership-I have to accept this-is that in some areas in which law might have developed domestically, it has not done so in the 45 years of our membership, because we did it in common with our European partners. That is just an historical fact. Because it is an historical fact, we have to grapple with how we make sure that we do not throw the baby out with the bathwater.
Does the right hon. and learned Gentleman feel, as I do, that from the Back Benches on both sides of the Committee is emerging an agreement, to which we wish the Government to respond? New clauses 50 and 51, tabled in my name and those of hon. Friends, are designed to make us look, first of all, not at laws from all over the world-we are, after all, debating the EU (Withdrawal) Bill-but at law from the EU. The new clauses would ensure that we put all EU law and regulations on to our statute book and allowed the House of Commons-we are not talking about a Henry VIII clause-to decide how we should review it. My only slight worry with the new clause that the right hon. and learned Gentleman has tabled is that it will tie the hands of a future Government, as he accused me of doing yesterday. It might be that, on reflection, there are better ways of reviewing EU law than involving the whole House in primary legislation.
I read the right hon. Gentleman's new clauses, and I can understand where he is coming from. If one looks at the totality of the amendments and new clauses in today's debate, one sees that they are all trying to do, roughly speaking, much the same thing. The question is not the exact route that is adopted, but how the Government respond to that challenge. I do not want to take up more of the House's time, but-
In case my right hon. and learned Friend is coming to a conclusion, I want to ask him this question. I think we all hope that the Government will propose some mechanism for sifting, but does he intend to make a binary distinction between delegated legislation, which could mean exclusively negative resolution, and primary legislation? Alternatively, is he willing to accept, as I think I would be, the possibility of a sift that involves allocating some tasks to the affirmative resolution procedure, and only some others to primary legislation?
I understand my right hon. Friend's point, but I wonder whether we are in danger of straying into another topic. There is an issue about the operation of the mechanism for implementing the changes and taking us out of the EU. I keep confidently hoping that the Government will be able to respond positively to that by having an adequate sifting mechanism for Parliament. Even when that has taken place, the changes envisaged for EU law are, as far as I can see, of a semi-permanent or permanent character. They are about the nature and quality of the law that we have decided to bring in, rather than the manner in which we have decided to do so. New clause 55 is very similar to new clause 25, tabled by the hon. Member for Bristol East (Kerry McCarthy), and they seek to look at the matter in slightly different ways. The question is how the Government will respond. That raises, perhaps, a more fundamental issue about the process of debate in this House, on which I hope the Government will be able to provide some reassurance this afternoon. I do not know how other hon. Members found it, but I found yesterday hugely instructive, not because it led to some votes-it did so, but let us leave the votes out of it-but precisely because it gave us the opportunity to have a cogent and sensible debate about problems on which, as we proceeded, we began to perceive that there might indeed be a degree of consensus. The problem is that we always run up against the sense that if the Government come to the Dispatch Box and say, “This is very interesting, and we will think about it,â€ but we do not do something about it then and there, we may lose our opportunity ever to do something about it. We will, of course, have the opportunity of Report stage, should the Bill have one.
I want to pick up my right hon. and learned Friend's point about consensus. As I understand it, new clause 55 is designed to send a clear message that the Government do not intend to lower standards for the environment, financial services or consumers without an open and transparent process. I have heard Ministers say from the Front Bench again and again that they do not intend to lower those important standards. Does he agree that that is an important message to give to our future trading partners in Europe?
I agree entirely with my hon. Friend. If we are to have a deep and special relationship, it is inconceivable that we could dilute the rights that have been created.
Will the right hon. and learned Gentleman give way?
I will give way, but then I want to bring my remarks to an end.
On that point, can the right hon. and learned Gentleman envisage a point in the future-it could be a very short time away-when tariffs are imposed and economic circumstances are such that businesses demand reductions in cost? Businesses will turn to the four weeks' paid holiday, the 48 hours directive or anything else that will cut their costs, and the Government will be tempted to abolish those rights.
I do not think I am quite as apocalyptic as the hon. Gentleman, because I happen to think that, as my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said in his speech yesterday, the idea that the UK suddenly wishes to translate itself into a country of no regulation and no protection at all is fanciful. I have never seen the smallest sign of that from any section of the public. Indeed, one of the things that brings us together as a nation is agreeing that quality of life matters while, at the same time, wishing to develop a cohesive society.
Will the right hon. and learned Gentleman give way?
I give way for the last time, because I really want to bring my remarks to an end.
Is it not true that the clearer the message we send out from the debate on this Bill that we are adopting the whole corpus of laws and regulations, the easier it will be to do a trade deal because we will be competing on the same terms?
The right hon. Gentleman makes an important and interesting point, to which I have no doubt the Government will respond. As I have said, however, I do not wish to be prescriptive. I want an assurance from the Government that this matter is being looked at, and that it cannot really be divorced from some of the things we will look at next week, or whenever the Committee sits again. My desire is that we should have such debates. I do not wish to force the Government's hand, even though that may appear superficially attractive. I do not actually wish to put new clause 55 to the vote; it has problems of its own. However, I put the Government on notice that we are going to have to draw together the issues we are debating today, and I am convinced that we will debate similar issues next week. All those issues derive from the same problem about the way in which the Government have approached and have at the moment drafted the legislation, and that problem must be remedied. It can be remedied, and I am happy to work with the Government to try to ensure that it is remedied. If necessary, we can come back to this on Report-on the assurance that we will have a real opportunity to do so on Report-and then pull the strands together and produce a package that will command some consensus across the House. I very much hope to hear that from the Government this afternoon, if I am not to be tempted to put my new clause to the vote.
I rise to speak to amendments 200 to 201 in my name and those of my right hon. and hon. Friends, and to new clause 45, which will be decided on at a later date. I also want to support amendment 217, tabled by our colleagues in Plaid Cymru. Last week, with several members of the Brexit Select Committee, some of whom have already spoken about this, I went on a very informative visit to Brussels and Paris. It was very informative partly because the people we spoke to were so well informed and so forthcoming. They appeared to be a lot better informed and more forthcoming about what Brexit is really going to mean than a great many Conservative Members and, indeed, than some Conservative Front Benchers. In about 20 hours of meetings, the shortest and most perceptive comment we heard-this sums up where we now are with Brexit-came from a member of the European Affairs Committee of the French Senate. He quite simply said, “Quelle pagaille!â€-“What a mess!â€ I replied that if he thought it looked like a mess from the French side of the channel, he should try looking at it from the United Kingdom's point of view. We have a Government who rushed into a referendum too soon, at a time when the UK population was the least well-informed in the whole of Europe of what Europe is actually about. Article 50 was triggered in indecent haste-far sooner than it needed to be-simply to pacify some of the more rabid Brexiteers on the Government Benches.
I was delighted to hear that we may have a consensual approach. May I gently chide the hon. Gentleman, because the public are rather fed up with being told that they are too stupid to know what they are doing, which is rather what he is saying?
I can only refer the hon. Lady to surveys carried out immediately before the referendum. Citizens in every country in the European Union were asked a number of questions on what they thought the EU was about, and it is a matter of fact that UK citizens were less well-informed about the EU-not because they are stupid, but because this Parliament and the free press in this country have failed to keep them adequately informed. For example, Government MPs referred to the Syrian refugee crisis during debates on the European Union Referendum Bill, but the Syrian refugee crisis had nothing to do with our EU membership. In fact, it had everything to do with our membership of the human race-and as far as I am aware, there have not yet been any proposals for us to leave that.
Will the hon. Gentleman remind us whether the legislation for the Scottish independence referendum contained a date in the event of there being a yes vote?
Yes, it did. A 600-page White Paper was also produced a year or so before the referendum, which allowed everyone taking part to be a lot better informed than even the same Scots voters were about the EU referendum. It is also worth reminding ourselves that after what has been described as a disastrous and divisive referendum, the first thing that happened in Scotland was that campaigners from all sides got together in local churches, held services of reconciliation and committed ourselves to working together to make the result work, even if it was not the result that we wanted. In the immediate aftermath of the EU referendum, there was a massive increase in crimes of racial hatred against citizens in this country and elsewhere. That was not the fault of those who voted to leave, but a consequence of how the referendum had been set out and how, for too many people, the campaign was conducted.
I do not share the hon. Gentleman's view that we leave voters did not know what we were doing. I found that people were very intelligently engaged and understood it. Why does he think the remain campaign and the EU institutions were unable to get people up to the level that he thought they ought to be?
Possibly because some people believed what was written on the side of a bus about £350 million coming to the NHS. I have heard the claims that that did not make a difference, but if that is the case why did the leave campaign pay for it and why was it so keen to promote it? The referendum has been held, and I have to accept that two parts of the United Kingdom have voted to leave the European Union. I do not have any right to stand in their way, but I say again that this Parliament will not be allowed to ignore the fact that two parts of the United Kingdom voted to stay. When 62% of the people in my country have said, “We want to remain in the European Union,â€ it is our constitutional and democratic responsibility to make sure that we honour that instruction in the best way possible. One way to do that, if it is impossible to avoid Scotland being torn out of the European Union against our will, is to retain as much as possible of the benefits that our people get from EU membership, and that is what I want to address by speaking to our new clause 45, which will be decided at a later date, and Plaid Cymru's amendment 217.
My hon. Friend was indeed correct to say that hate crime rose after the Brexit referendum, but for the sake of accuracy it is worth reminding ourselves that, while it rose in the UK on aggregate, it actually fell in Scotland.
It is certainly correct to say that reported hate crime fell. I was made aware of a couple of cases in my own constituency of hate crimes not being reported to the police, for reasons that I did not understand but had to accept on the part of the victims. We have to be careful because, rather than there being a reduction in hate crime, perhaps it is being under-reported, but my hon. Friend makes a good point.
This has already been raised in the Chamber, but does the hon. Gentleman agree that today's story in the papers about whatever the Russians did that may have skewed the Brexit referendum result is a very worrying issue?
It would certainly be worrying if any major power was able to use dirty tricks to influence the result of a democratic process in any country. It may be worth remembering that it is not that long ago that David Cameron pleaded with Vladimir Putin to interfere in another referendum to ensure that he got the result he wanted. It is important that, if we are going to criticise and call out foreign interference on behalf of our opponents, we should also be prepared to call out foreign interference in our favour. It is important for the people I represent and the nation that has sent me to this Parliament to be one of its representatives that we seek to retain as much as possible of the benefit of European Union membership, even after we have been forced to temporarily leave it, so we should seek to reverse the Government's unilateral decision on membership of the single market and the customs union. Plaid Cymru's short amendment would help to do that by ensuring that, even after leaving the EU, the Government have no authority to leave the European economic area without a further vote of this Parliament. The first benefit of that would be that the 4 million would be able to relax, if the UK Government say today, “We got it wrong. We're staying in the European economic area and in the single market.â€ All the worries about settled status and all the paperwork that people have to go through just to guarantee the rights that they already have would stop, as would all the concerns about how we square the circle of borders or no borders at different stages between the UK, Northern Ireland and the Republic of Ireland if Northern Ireland and the rest of the United Kingdom remain in the single market and the EEA.
Can the hon. Gentleman explain what on earth he is talking about has got to do with the two clauses under discussion?
I rise to speak in support of clauses 2 and 3. It is a pleasure to participate at Committee stage, which is one of my favourite stages of debate because it is a time when we can all can come together in a mature way to look at the detail of the Bill and debate it as grown-ups. May I say to my right hon. and hon. Friends on the Government Benches, and indeed to all hon. Members, that I certainly intend to take very seriously the points that have already been made, and those that will be made today, in future Committees days, and-I assure my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) of this-on Report?
I thank my hon. and learned Friend for giving way so early in his remarks. Will he also reflect on: the Health and Morals of Apprentices Act 1802; the Factory and Workshop Act 1878, which was brought in by Disraeli; the 1901 Act brought in by Salisbury; and, if we wind forward to the former Prime Minister, David Cameron, rights, such as maternity and paternity rights, that far exceeded the EU's minimum guarantees?
My hon. Friend's point is well made. We are talking about centuries of progress. To bring things right up to date, the Prime Minister made a pledge in her Lancaster House speech, which was underlined in our manifesto-I can underline this again today on behalf of the Government-that the Brexit process will in no way whatever be used to undermine or curtail the rights of workers that are enshrined both in domestic law and in law by virtue of the European Union.
When the right hon. and learned Member for Beaconsfield (Mr Grieve) allowed me to intervene, I asked whether a consensus was emerging. New clause 50 states that all European laws and regulations would be brought on to our statute book by European exit time, but is the Minister saying that that will actually occur and that such an amendment is unnecessary? If that is the case, some of us will not have to move our amendments.
In a nutshell, I would say that the right hon. Gentleman's amendment and those associated with it are indeed unnecessary. I will set that out in more detail when I come on to address his point and those made by the hon. Member for Greenwich and Woolwich (Matthew Pennycook), who spoke to the amendments very helpfully, if I may say so with respect.
The hon. and learned Gentleman knows that I respect him. If we take him and what he is saying at face value, I do not think he has a lot to fear from new clause 55, new clause 25 or the other measures being proposed as they would simply secure what he is saying. However, does he understand why many of us have suspicions when we hear speeches about a low-regulation economy from Members such as the hon. Member for North East Somerset (Mr Rees-Mogg) that are then retweeted by the Department for International Trade? That is where these deep worries are coming from.
I absolutely understand the concerns of hon. Members on both sides of the Committee. The Government's policy is clear, and I shall address in further detail where the Government stand on those amendments.
Will the hon. and learned Gentleman give way?
May I make some progress at this stage? I will certainly invite the right hon. Gentleman to intervene later, but I want to develop my arguments on the clauses. Clause 2 preserves the domestic law we have made to implement our EU obligations. More specifically, the clause will preserve any domestic regulations made under section 2(2) of, or paragraph 1A of schedule 2 to, the European Communities Act 1972. Without clause 2, such legislation would lapse at the same time as the repeal of the 1972 Act, meaning that there would be substantial holes in our statute book on the day we leave the EU. The clause is therefore essential to preserve our statute book and provide certainty over what our law is. I think that all Members would agree that at the heart of the rule of law is the need for certainty. That was why the Prime Minister put that at the top of her list when she outlined her criteria in the Lancaster House speech, and it was why I campaigned very strongly on that when standing for re-election.
I am listening to the Minister very patiently. He, like other Members who have looked closely at the Bill, will know that clauses 2 and 3 both conclude with a key phrase:“This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).â€We cannot possibly consider clauses 2 and 3 without looking at schedule 1, which removes overnight the general principles of EU law such as non-discrimination, proportionality and respect for fundamental rights.
indicated dissent.
The Minister may shake his head and he may not agree, but that is in the Bill he is advancing in this Chamber.
With respect to the hon. Lady, I do not agree with her analysis. We will carry out more detailed scrutiny of clause 5 and schedule 1 at a later stage, but I reassure her that clauses 2 and 3 will create certainty which, as I have said, is vital. We drafted clause 2 in a deliberate way. We have drawn it more widely than to cover just domestic legislation created under the 1972 Act as it will also apply to any other domestic primary or secondary legislation that implements EU obligations. It will apply to any related domestic legislation, any domestic legislation relating to law that will be retained under clauses 3 and 4, and indeed any domestic legislation that is otherwise related to the EU or the European economic area. That ensures that all that legislation will form a part of what we define as retained EU law. We have done that for two reasons. First, it means that this legislation, where relevant, will be interpreted in the light of pre-exit case law-the case law of the Court of Justice of the European Union-and the general principles of EU law, which are provided for in clause 6. That is vital to ensure not only that we save the legislation, but that we provide for it to operate in precisely the same way as it did before, which will prevent legal uncertainty about how such provisions should be interpreted. Secondly, our approach ensures that to the extent that deficiencies might arise in any legislation as a result of exit, they can be corrected under powers in the Bill. Saving the domestic legislation under this clause will therefore reduce the risk of uncertainty and increase continuity as to the law that applies in the UK. It will also mean that we avoid the famous cliff edge that many hon. Members are worried about when we leave the EU.
I do not want to pursue further the questions about clause 6-we will talk about them anon, and we talked about them yesterday-but while very many of us have no objection to anything my hon. and learned Friend says about the way in which existing law will be incorporated under clauses 2 and 3, does he accept that the issues raised by Members on both sides of the Committee are about the mechanisms by which the Bill seeks to achieve what he describes as correcting deficiencies, but could also be used to do much more than that? Does he therefore accept that the only thing we are currently debating is the mechanism to ensure that more than correcting deficiencies is not done by the technical means of statutory instruments under the negative procedure?
That is the nub of it. I hope that I can reassure right hon. and hon. Members that the Government's policy is very clear and delineated, and that this is not some out-of-control power grab involving the use of the Bill-this is a framework and process Bill-as a basis to change policy. That is not the intention of the Bill.
The Minister has persuaded me that I do not need to speak to or move new clause 51, which relates to the point raised by the right hon. Member for West Dorset (Sir Oliver Letwin). Given the general wish in the country to take power back, new clause 51 would provide a place where power is supposed to come back to-the actual authorities-and set the means by which we review what we want to keep, extend, amend and kick out. Will the Government allow us to decide the mechanisms by which we undertake that review?
I take issue with the mechanism in new clause 51, which would be rather burdensome and could increase uncertainty, which would not be good for businesses or citizens, but I will take the spirit in which the right hon. Gentleman tabled it very much to heart and mind when considering how to develop the ongoing dialogue about the means by which this place can sort the wheat from the chaff, if I may use that phrase.
I hope that this will be my last intervention. The purpose of the measure is to make sure that we all know that the task will be massive. I thought the idea preposterous that most of us would be prepared to give up all our other interests to participate in that mega review, which the right hon. and learned Member for Beaconsfield said might go on for 20 years, and I thought we could hand back quite a bit of it to the Government, providing we could keep hold of the reins.
The right hon. Gentleman is right to call this task mega. I remind the House that, according to the EU's legal database, more than 12,000 EU regulations are currently in force here. As for UK domestic legislation, the House of Commons Library indicates that there have been around 7,900 statutory instruments implementing EU legislation. This is indeed a mega task-to coin his phrase.
I accept that there is no intention that the Bill takes away the rights and protections enshrined in EU law and that the Bill does not imply that they will be taken away. The problem is that the Bill enables future Governments to do so, and there is therefore a need to protect those fundamental rights and protections by providing that they can be amended only through primary legislation. They need to be separated from the great mass of technical stuff that can be sifted by the European Scrutiny Committee or other such turbo-charged Select Committees, which could look at the minutiae.
The hon. Gentleman has been a committed pro-European throughout his career. I enjoyed his You Tube videos during the campaign- I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.
My hon. and learned Friend accepts that the problem is that the Bill includes powers that could be used to make drastic reductions in environmental standards and other things without any proper parliamentary process. There is a widespread consensus among remainers and leavers that we do not want the powers to be used in that way. He sounds as though he is about to reassure us that the policy of the present Government is that although they are taking the powers, they have no intention of using them for such purposes. I have the highest regard for him-he is a personal friend-and I quite accept that a Government led by this Prime Minister is not about to use draconian powers to lower standards, as her instincts are quite the other way. Given that the powers are therefore not needed-we do not need a Bill to give us powers that no one wants to use-why can we not amend the Bill to put it beyond doubt that no such attempt will be made? Heaven forfend that my party should swing to the right at any time in its long and distinguished history, but there are members of the present Government who are not excessively fond of lizards and bats, or workers' rights. We would all be reassured if he undertook to put in the Bill a reduced level of powers.
My right hon. and learned Friend knows that I hold him in the utmost respect-reverence even-but, having discussed the mega task that faces us with the right hon. Member for Birkenhead (Frank Field), I think he will agree that it is probably safer and wiser for the Government, with a belt-and-braces approach, to make sure that we do not have any slips between cup and lip, and that there are no lacunas or loopholes in the law that could actually endanger these protections and rights.
I share the concerns of the right hon. and learned Member for Rushcliffe (Mr Clarke). If the Government will not use the powers, why are they giving them to themselves? The Minister talks about dialogue and reassurance, but I have not heard anything practical from him about how he will change the Bill to address these concerns. What is he going to do?
I will come to that, but first I want to deal with the amendments tabled by the hon. Lady's colleagues.
I need to press on, because other Members want to speak and I am mindful that you, Dame Rosie, want as many as possible to have the opportunity to do so.
I am sorry. I need to press on. Clause 3 converts the text of direct EU legislation, as it operates at the moment immediately before we leave the EU, into our domestic law. Such existing EU law is currently given legal effect in our law via section 2(1) of the 1972 Act. Without clause 3, those laws would no longer have effect in domestic law when we leave and repeal the 1972 Act. Again, that would leave holes within our domestic law. More specifically, the clause converts EU regulations, as well as certain decisions and tertiary legislation, into domestic law. It also converts adaptations to instruments made for the EEA. The clause is necessary to ensure that we fully keep existing EU laws in force within the UK. In general, these instruments, or parts of them, will be converted only if they are already in force before exit day, meaning that an EU regulation set to come into force six months after we leave will not be converted into UK law. However, some EU instruments will be in force but will apply only in a staggered way over time, with different parts applying at different times. In those circumstances, only those parts that are stated to apply before exit day will be converted.
I might be anticipating the Minister's later remarks, but does that not leave us with a possible loophole when we have participated in the preparation of measures that have not yet come into force and we might regard as thoroughly desirable, but we cannot by any means bring them into force?
I will deal briefly with my hon. Friend's amendment 356. As I was saying, we have some examples here, such as the EU's fluorinated greenhouse gases regulations, which are stated as applying from 1 January 2015. They include prohibitions on placing certain substances on the market from specific dates, several of which fall after exit day. With respect, however, his amendment could create further confusion, because there needs to be one standard cut-off point at which the snapshot of law is taken, and that is why exit day should apply. When it comes to measures affected by the cut-off point, we will do whatever is necessary before exit day to provide certainty for business, including by bringing forward further legislation, if required, to cater for those particular situations. If I may return to develop-
Will the Minister give way?
I will certainly take more interventions, but I am mindful of the time. May I deal with clause 3? The clause converts only the English language version of the instrument. Other language versions will remain available, as they do now, for interpretive purposes. Finally, as hon. Members would expect, the EU instruments that have never applied in the UK will not be converted under the clause. That includes instruments in respect of the euro and measures in the area of freedom, security and justice in which this country did not choose to participate. Those exempt instruments are described in schedule 6.
The Government have said that they will guarantee existing employment rights derived from the EU, but the EU is also looking at proposals to extend those rights by, for example, requiring employers to give workers on zero-hours contracts a written statement of their pay rates and expected hours of work. Will the Government champion employment protection and require employers to give workers on zero-hours contracts a written statement of their terms and conditions?
The Government, through the Taylor review, have been committed to looking at all aspects related to zero-hours contracts, and this, post-exit day, will be a matter for the House and this Parliament to determine. It may well be that this or a future Government make changes of the sort that the hon. Lady and others are looking for. The fact that we are leaving the EU in no measure whatever rules out the potential for those changes to be made. May I deal with-
My hon. and learned Friend may be saying what I had hoped he was going to say. May I ask him to be a little more specific? Does he mean that, in due course and in their own time, the Government will come forward with-if I might put it this way-a triage amendment that settles a process for distinguishing between technical deficiency amendments and substantive amendments, and the way in which either is treated?
We are going to continue the dialogue, listening extremely carefully. Indeed, there might be a form of words that we can agree on that satisfies this place. Let us not forget that primary legislation is not the only way we can create this mechanism. There are Standing Order provisions of the House that the House jealously protects and preserves, and the Government are mindful of the need not to trespass on the exclusive cognisance of the House.
Will the Minister give way?
Will the Minister give way?
I think I must give way to the hon. Member for North Down (Lady Hermon), who has been waiting for me to allow her to intervene.
I am extremely grateful to the Minister, because I took him at his word. In his opening remarks, he said how much he welcomed consideration in Committee of any Bill because it allowed us to debate in an adult fashion, so I am grateful to him for, at long last, giving way. May I seek clarification, without the Minister referring to his very complicated notes? People need to understand what is happening, and I would like him to explain, before anyone withdraws or decides not to press their proposal, how directly effective provisions of EU law will be safeguarded. These are rights that arise through EU jurisprudence, not from a directive or a regulation. I want guarantees from him that directly effective provisions are protected beyond the Bill.
One reason the hon. Lady has not heard me outline that concern in detail is that clause 4 is the sweeper clause and my hon. Friend the Minister of State, Ministry of Justice, will deal with that in the second part of the debate. I assure her that, by the end of today's proceedings, her concerns will, I hope, have been addressed during the debate on clause 4. I want to deal with the amendments, having, I hope, made-
Will my hon. and learned Friend give way?
Will my hon. and learned Friend give way?
The Minister has talked quite a lot about the purpose of this exercise being to provide continuity and certainty, but is it not the case that that will be true only on day one? He cannot guarantee any continuity or certainty on day 100 or day 1,000, but is not that, for many of his colleagues, the whole point of leaving the European Union?
The right hon. Gentleman is old enough and wise enough to know that, while this exercise of freezing the law in time on exit day has to be done, the law is a constantly evolving creature. None of us can stand here and bind the hands of our successors. What we can do, as men and women of good will seeking to achieve as sensible and smooth a Brexit as possible, is provide legal certainty. That is why I am here. That is why I have undertaken to try to deal with this task. That is why this Government are doing everything they can, within the time they have, to get this right.
I have been listening carefully to what my hon. and learned Friend has been saying. Again, there seems to be an overlap. There are issues about how Parliament conducts scrutiny, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) has mentioned. That is also covered in proposed new subsection (3) of my new clause 55. There is also the question about modifications to some areas of retained EU law taking place in any way other than by primary legislation, in the longer term. Keeping those two points in mind, may I invite him to go away and see, as the discussion continues, what the Government can come up with by way of a package involving those two elements that might commend itself to the House, bearing in mind the undertaking that he has given to look at this afresh on Report and for the Government to respond positively on Report to what has been said?
Yes, I am happy to do that. That is very much in the spirit what I have already said.
Will the Minister give way?
No, I would like to press on, if I may. I am mindful of the time, and I want to make sure that we get these points on record. I want to deal with the points, which I hope hon. Members want to hear, about the Government's commitment not only to workers' rights but to consumer protection rights and environmental obligations-all of which have been very much a part of the work that we have done with our European partners during our 43 years of membership of the European Union. That does not change. I want to move on to some of the other amendments-
I thank my hon. and learned Friend for giving way. This is quite an important issue. A moment ago, I thought that he was on the brink of saying that he would try to come back to the House on Report with the Government's own legislative proposals to give effect to the good intentions that he has assured us the Government entirely share, but at the last moment he hesitated. When he said yes, was he committing the Government to putting in the legislation the best solution in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) in particular, so that we could all be assured that the Bill will leave this House in a way that we entirely unanimously accept?
I thank my hon. and learned Friend for giving way. He is being very generous with his time, and he is making a very useful and, I think, positive speech explaining how the Bill will deal with people's concerns about the cliff edge and limitations. Does he agree that it also gives us a chance to support the working statute book, ensuring that we look after our own environment, consumer rights, workers' rights and LBGTI rights?
My hon. Friend is a passionate campaigner on many of those issues. I can reassure her and her constituents that that is precisely what we seek to do. I hope that I have dealt with the new clauses tabled by the right hon. Member for Birkenhead-
I accept what the Solicitor General said about new clause 50, and I think we should thank him for what he said and what he will try to achieve. New clause 51 is about setting up mechanisms whereby the House could determine how the corpus of legislation and regulation brought into UK law could be reviewed. Will the Solicitor General say a word about that before I go to the Chair and say that I am satisfied in this instance as well?
I hoped that I had responded to new clause 51 in an earlier intervention. It is well intentioned, but the mechanism is too burdensome. It would impose an annual obligation to produce reports which I think would pile Pelion on Ossa, given the amount of work that we have to do in the House anyway because of the unusual circumstances that we face.
I do not think that the House has the appetite to undertake the review, given the ginormous amount of legislation that is coming over to us. I tried to get the Library to describe what would happen. Would this whole place be full of pieces of paper-full of legislation and regulations? How the hell are we, as individuals or groups, going to deal with that? There is another crucial point. Given what was said by the right hon. and learned Member for Rushcliffe (Mr Clarke), might there be discussions before Report about the form in which the Government might bring back the sentiment involved in what the Solicitor General is saying, and what we are all saying, so that we might vote on that?
Yes, indeed. I shall now move on to new clauses 9, 22, 23 and 29, which is linked to amendment 128, new clause 45 and amendment 217, which is linked to amendment 64. They all in various ways deal with the question of the EEA. As we have said on several occasions, this is not about the UK pursuing an off the shelf arrangement; it is the UK seeking a bespoke arrangement that works for us. In the Florence speech of 22 September-which happens to be my birthday, although I am sure there was no coincidence in that-the Prime Minister set out a vision for the new economic partnership: a new partnership that will empower us to work together in continuing to bring shared prosperity for the generations to come.
I accept of course that we should have on the table the option of creating a bespoke deal for our future relationship, but surely we would want to have a range of options and models on the table as we shape that deep and comprehensive partnership? Why would we want to take one of those potential models off the table now, as it could be the building block of something different coming further down the line?
I always listen to what the hon. Gentleman says with a great deal of interest, but I say in the context of the Bill-although mindful of the constraints of Committee debate-that the thrust of these amendments will not achieve what their movers seek, which is to keep this country in the EEA. That is because all the amendments are based on a mistaken understanding of the UK's relationship with the EEA. The UK is a party to the EEA agreement in its capacity as an EU member state, so once we leave the EU, the EEA arrangement will no longer be relevant. It does not have a practical effect at international level, and domestic legislation cannot change that.
Will the Minister confirm that one of the few things remain and leave agreed about in the campaign is that we would be leaving the customs union and the single market, and we would not be doing a Norway? Both sides said that, and the British public understood it.
My right hon. Friend and I were on opposite sides of that debate-indeed, we have been on opposite sides of the debate on Europe for the 20 years and more that I have known him-but I never said in the many arguments I made up and down the country that this was a have your cake and eat it withdrawal: if we voted to leave, it would mean we left the institutions of the EU, which included the customs union and the single market. That is why I campaigned against it, but I accept, as every democrat I know does, the result of the referendum. I shall now move on, as swiftly as I can, to deal with the effects of these amendments.
I would love to give way to the hon. Lady, but I am mindful of the time, and Mr Hoyle is looking at me in a very stentorian way, so I had better follow that instruction. There are some potentially detrimental effects of the amendments that I know hon. Members would want to avoid. Amendment 217 seeks to remove the annexes to the EEA agreement from the scope of clause 3. The hon. Member for Arfon (Hywel Williams) is not in his place at present, but the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) is here to represent their party's interests, and I say to him that that amendment would not allow us to remain in the EEA, for the reasons I have set out, and it would damage the clarity and certainty we aim to provide. As many hon. Members already know, the EEA agreement effectively extends the single market to three non-EU countries: Norway, Iceland and Liechtenstein. Annexes to the agreement specify which single market rules apply to those countries, along with any necessary adaptations, in order to make the single market properly operate with respect to these countries. Clause 3(2)(b) and (c), which amendment 217 would remove, provide that EU instruments which apply to the EEA will also be converted into domestic law. Those provisions are necessary to ensure that we fully preserve the existing laws and rules that apply here before our exit. They are not, and are not in any way intended to be, a means by which the UK ceases to be a party to the EEA agreement. The retention or otherwise of such annexes within our domestic law will not change that basic fact. The effect of amendment 217 would only be to leave gaps in the law which, as I have set out, would clearly be undesirable.
Will the Solicitor General confirm whether the powers outlined in part 2 of schedule 8 and in clause 8 would allow Ministers to issue an article 127 notification under the EEA agreement?
That is not necessary. The provisions in schedule 8 are all about the frameworks, not the policy, and this Bill is not a vehicle for policy. This is a framework Bill that allows the law to operate within it. That is the distinction that I seek to draw. While I understand and respect the reasons behind the amendments, they do not deliver the policy outcomes that the hon. Lady and others may want.
Will the Solicitor General give way?
When the Minister talks about bringing forward a package on Report, do I take it that the amendment in my name and in the name of my hon. Friend the Member for Wimbledon (Stephen Hammond) is intended to be in that package?
I am always happy to engage with my hon. Friend and with my hon. Friend the Member for Wimbledon (Stephen Hammond). I know the spirit in which they tabled the amendment, and I look forward to the dialogue to come. I commend clauses 2 and 3 to the House.
I know that an overwhelming majority of the people who voted in the hon. Lady's constituency voted to remain. Does she share my concern that many such people feel completely excluded from Brexit? Does she think that this sort of debate will absolutely help to bring people back together and, perhaps, to form a consensus on Brexit?
I completely agree. My new clause may offer some form of compromise, which I shall set out in due course. How many of our colleagues actually understand what the Bill will do? Why do the Government want to avoid open and transparent debate? Why is there not a specific clause in the Bill that makes it clear? The answer is obvious: the Government are doing everything they can to avoid an explicit vote on whether the UK should leave the EEA and the single market. They are worried that there might be a parliamentary majority for a so-called soft Brexit, in which we put jobs first and anxieties about immigration and so-called sovereignty second.
Will my hon. Friend give way?
On an important point of clarification, my hon. Friend has made an incredibly strong speech. Citizens have only to go through the border and see EU and EEA as separate things on border signs to know the importance of the argument that she is making. Like me, would she like to see this measure put to the House at the appropriate time in the Bill, depending on the argument that we hear from the Government and others?
My hon. Friend has issued a very timely reminder to me. If it were possible, I would like that to happen.
I do not see the problem with that. If the piece of legislation is as benign and generally agreed as my hon. Friend says, it will go through the House quickly. If it is not actually agreed and there are lots of issues to tease out, should not we put it through a proper democratic process?
Will the hon. Gentleman elaborate on that in the Scottish context? Further to what he has just said, we can imagine the discussions that would take place between Holyrood and Westminster. How would those be timetabled in terms of what he has just said?
It would be for the Government to choose whether to bring such things forward. At the moment, it would be quite onerous to have primary legislation. Not all these issues will, of course, affect the Holyrood situation. Holyrood may well wish to adopt a procedure for devolved matters, and we could look at that constructively. If there is to be a package of further discussions, we could also consider that further. Scotland is important as a centre of financial services, as is the City of London, and we could try to develop these things as we go forward.
Will the hon. Gentleman give way?
I rise to speak to my new clause 25, which has cross-party support. The Minister has already praised me from the Dispatch Box for the clarity with which I have spoken to it, but I can reassure him that now this really is me doing so. I also support new clauses 55 and 58. All these new clauses relate to retaining enhanced protections after exit day. As will be evident from other measures I have tabled, including new clause 28, which is in today's second group, my main concern is retaining the valuable environmental protections that flow from our EU membership. However, of course, employment rights, equalities, and health and safety standards, as set out in new clause 58, which was tabled by Labour Front Benchers, are also vital, and the same arguments apply to them.
I am pleased to have the opportunity to speak in this debate, and particularly to clauses 2 and 3. Of course, my speech follows an intensive course over the past week on how to stage an exit, which was the focus of a degree of international attention. For anyone who is still tracking my movements, I can confirm that as I walked into the Chamber this afternoon, I passed statues and portraits commemorating some of our greatest statesmen, including Margaret Thatcher and Winston Churchill. Those statesmen stood up and defended democracy, freedom and the sovereignty of our great nation. The Bill paves the way for a smooth withdrawal from the European Union. It complements many of our debates and discussions about article 50 and delivers on the will of the British people, as expressed in the referendum. I welcome the clarity provided by clauses 2 and 3. I pay tribute to my colleague the Solicitor General, who spoke with great clarity for almost an hour about providing guarantees and ensuring that a snapshot of EU law, as it currently applies, is maintained in this country. The clauses are comprehensive and sensible. They outline pragmatically the steps that need to be taken to prevent a legislative vacuum. They provide important certainty to businesses and the public. They should help to ensure that the great Brexit trade deal that we hope to secure-and we will secure-for our country can be agreed with the EU on exit with regulatory equivalence in place in the right quarters. Of course, because we are taking back control, this Parliament, the Government and the devolved Administrations will be in a position to amend, adapt and change measures, as appropriate, in the years ahead.
Does the right hon. Lady agree that we risk sacrificing parliamentary scrutiny because we are in a big rush to get everything done? Exit day is looming and it is now widely agreed that we face a massive task, so we are rushing everything and sacrificing parliamentary scrutiny.
I respectfully suggest that scrutiny is the purpose of these debates in Committee. We should have a great deal of pride in our role in that scrutiny. We must work with the Government and Ministers. Yes, part of that work is the tabling of amendments, because that is the nature of debate, but our job is to look pragmatically at the right way to deliver the referendum outcome. As we have heard from many Members, including in good contributions today, we will keep measures that are in our interest and that work for our country, and we will of course amend and revise those that do not. Clauses 2 and 3 are about not only taking back control of those laws and putting power back into the hands of our lawmakers, but introducing accountability through scrutiny. During our consideration of our withdrawal from the EU, Members have tabled amendments-and rightly so-but we should not listen to those who do not have confidence in this House, our democracy and our country, and we should reject the suggestion that we are incapable of governing ourselves. That clearly applies to comments that we have heard not just today, but in previous debates, and predominantly from Opposition Members. They may want to be governed by the EU because they feel unable to govern themselves, but we fundamentally believe that our democratic institutions, and this House in particular, are held to account by the British people, and that we can make laws in all areas covered by the EU.
Does my right hon. Friend agree that the implication that somehow Britain would be a horrible, ungovernable place were it not for the benign guiding hand of the European Parliament and European legislators is a massive insult not just to Members, but to every single person in the country?
My hon. Friend makes an important point. One great former leader, Margaret Thatcher, once said:“What is the point of trying to get elected to Parliament only to hand over...the powers of this House to Europe?â€- We now have the chance to move in the right direction, and to deliver on the will of the British public through the mechanisms available to us and following the scrutiny we are carrying out in this House of Commons. Importantly, we can also look at how we can make better and more effective laws. We have very clearly heard from the Solicitor General how we will be proceeding with the right approach, and how we will develop high standards that are in our national interest.
The right hon. Lady is clearly very keen that Members should scrutinise things effectively. Does she therefore agree with me that the Government should not allow new agencies to be set up, or the role and responsibilities of existing agencies to be changed, through secondary legislation, because such things should be done through primary legislation?
The right hon. Gentleman knows that secondary legislation is scrutinised. We all have an effective role-I am sure he has experienced this many times while he has been a Member-in scrutinising secondary legislation. We will have the opportunity to make and amend laws, and also to look at what will work in our national interest. Quite frankly, I take great pride in that as a Member of this House of Commons. I take great pride in taking part as a British citizen, in this British Parliament, in standing up for our national interests on the laws and decisions made for our country. Of course, that means not that we will cut or axe regulations arbitrarily, but that we have the ability over time to look methodically at our laws and how to change them and, in particular, at how to make them reflect modern challenges in ways that are most effective for our economy, our country and our future prosperity, and that applies to every aspect of policy.
This partly repeats my previous point, but does the right hon. Lady recognise that, whichever way this law is approached, the crucial issue is keeping Scotland's financial industries safe and letting Scotland prosper, because there is a grave danger of getting this wrong, whether through primary or secondary legislation?
As ever, my hon. Friend makes a rational case, but can he tell me what he would do with extremely damaging and bad EU regulations? I will give him two examples: the electromagnetic field directive stops the use of the scanners in our hospitals and the clinical trials directive is so burdensome that it stops drugs coming on to the market for up to 10 years. Surely he would not want us to be aligned to those regulations, but want us to have better regulations?
Yes, there will be a Report stage. I can assure the hon. Gentleman of that.
I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that. My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU-on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decisionâ€, just will not do.
My hon. Friend has listed what we would like to see. Would he also include regional aid, which is very important to west midlands manufacturing industries?
Regional aid-and the financial side-probably has more to do with the EU, and the Government have to say how they would substitute that. All these policies are much affected by our membership of the EEA. The only things not in the EEA are many of the customs union and trade policy arrangements. If we want a smooth Brexit-a soft Brexit, we might call it-membership of the EEA is by far the better arrangement. Rather than climbing every mountain rebuilding a trade relationship with the EU, as well as reaching all the free trade agreements with the rest of the world, we could retain our membership of the EEA and with it those trading benefits with the rest of Europe, while still being free to make trade agreements with those other countries we could negotiate with. That would be a bite-size way to deal with this change and more effective than having to climb all those mountains simultaneously.
How could the UK continue to enjoy the trading benefits of EEA membership without being a member of the European Free Trade Association?
I was a member of the International Trade Select Committee in the last Parliament and recommended that we be a member of EFTA. It is certainly something to consider. It is necessary that we be a part of those alliances if we are to retain some of the trading benefits and links we have. If we want to avoid a cliff edge and a mountain of work, starting from scratch again, we have to retain our membership of the EEA and, at the very least, have a proper assessment from the Government of the costs and benefits of leaving. To do otherwise would be deeply irresponsible.
There is a danger in Committee that we get sidetracked into rehashing the whole of the Second Reading debate, and I certainly want to avoid that at all costs. Moreover, I have no basic problems with the structural phrasing of clauses 3 and 4, unlike clause 6, which we debated yesterday and will be discussing further anon. I want first to put on the record what I think my hon. and learned Friend the Solicitor General, in a helpful series of exchanges with various Members, has already confirmed and then to point out one interaction with clause 6. I understood him to say that at an appropriate point, either on Report or in another place-on Report, I hope-the Government would come forward with some mixture, to be decided, of changes to Standing Orders and changes to the Bill to ensure some process for Parliament to sift, or to have sifted on its behalf and then reported to it, all the proposed amendments to existing EU legislation incorporated or saved under clauses 3 and 4, and indeed any others.
Clauses 2 and 3.
I wish to speak about amendments 87 and 217, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and his Plaid Cymru colleagues. Amendment 87 provides that the expression “EU-derived domestic legislationâ€ in clause 2(2) should not include“any enactment of the United Kingdom Parliament which...applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006â€, and seeks to apply the same provision, mutatis mutandis, to Scotland and Northern Ireland. The matters specified in Schedule 7A are those matters that are reserved to the United Kingdom Parliament under the terms of the Welsh devolution settlement. According to the explanatory statement attached to the amendment, its purpose is to“alter the definition of EU retained law so as only to include reserved areas of legislation. Thisâ€, it explains,“will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.â€However, the actual effect of the amendment would be far more wide-ranging. The purpose of clause 2(1) is specifically to preserve EU-derived domestic legislation after exit day in order to ensure-as we have heard-that there is a coherent statute book. The expression “EU-derived domestic legislationâ€ is defined in clause 2(2), and the category of legislation that is thereby preserved is very widely drawn. The effect of the amendment would be that any legislation applicable to Wales that might otherwise fall within the definition of EU-derived domestic legislation would fail to do so if it were also an enactment of the United Kingdom Parliament. There will be a wide range of such legislation in force that predates devolution and also postdates it, right up to-I venture to suggest-the enactment of the Government of Wales Act 2017.
Does the right hon. Gentleman agree that if we want to trade with other nations, we must have some form of agreement with them? We cannot just trade and have our own arrangements and regulatory systems without any agreement with other nations or states who want to trade with us and without a body acting as referee. We therefore must at some point be part of some sort of agreement or arrangement with other countries, otherwise we will just sit there somewhere in the North sea on our own.
That may well be so, but I invite the hon. Lady to digest the terms of article 126 of the EEA agreement and then consider whether at the moment of our departure from the EU we will still be subject to the EEA agreement. I believe we will not. For the reasons I have outlined, I invite the hon. Member for Carmarthen East and Dinefwr not to press amendment 217, too.
The UK Government are not content with raising trade barriers with the 27 countries in the world with which we do half our trade. By fact of the 38 other agreements that the European Union has with other countries, that means another 67, so there will be 94 countries with which trade would involve higher barriers. When Ministers are asked about the number of countries, they have no idea how the dice will roll.
The Chairman of the International Trade Committee speaks with great expertise. That was one of the first questions that I asked the Secretary of State for International Trade when he was appointed, and it has been forgotten in this debate. The Government informed us at the time that the transition would be seamless, but it appears that that might not be the case. These are not idle threats; this is the reality. Only yesterday, Aston Martin's CEO came here and told Members directly that a no-deal Brexit would mean the cessation of production of their cars in the UK. That means their new flagship plant in the Welsh Secretary's backyard in the Vale of Glamorgan could be pulled even before it begins production of the first car. My concerns, and those of my Plaid Cymru colleagues, are entirely predicated on Wales's national interests. That means ensuring full and unconstrained access to our important European markets, which are the destination for 67% of all Welsh exports and 90% of our food and drink exports. It means our NHS, universities and industries being able to recruit skilled workers from across Europe. It means putting Welsh jobs, wages and, fundamentally, my nation's future first. It is not feasible that trade deals with Australia, New Zealand and other far-flung nations will replace the level of economic activity that the EU trade sustains in Wales. Leaving the single market and the customs union does not mean going back to some comfortable status quo. We need a reliable and effective system in place to prevent potential catastrophe on exit day. We have the option of remaining in the single market and the customs union, as has been made clear by chief negotiator Michel Barnier during the discussions to date. Maintaining those vital economic frameworks would be the most prudent economic path to take, instead of endeavouring to create something new and untested that could not possibly replicate the benefits of EEA status.
Before the hon. Gentleman leaves his discussion of EEA membership, does he not accept that article 126 of the EEA agreement provides explicitly that it applies only to members of the European Union and to the relevant members of EFTA? Given that we will be neither, how can it possibly apply to us?
That point was also made by the First Minister of Wales when he was against this position, before he changed to agreeing with Plaid Cymru. Surely we should be endeavouring to achieve what was promised by Brexiteers such as Daniel Hannan prior to the referendum. He said that the Norway solution would be the most applicable and best solution for the UK.
I will try to assist the hon. Gentleman. The United Kingdom signed the EEA agreement in 1993 as a sovereign country. The United Kingdom is a single and separate contracting party. The body of legal opinion is very divided on this issue. Eminent experts such as Charles Marquand and George Yarrow have made it clear that they believe that to leave the EEA, the United Kingdom must trigger article 127 of the EEA agreement. Given that legal opinion is divided, this is surely a political issue that needs to be brought to this sovereign House so that we can take back control and have a proper debate and a vote.
I am always grateful for the hon. Gentleman's assistance. He also speaks with great authority on these issues. From where I approach these negotiations, it seems that the British Government's decision to be outside the single market and customs union has created huge friction in the negotiations with the European Union. If we were to say that we wanted to stay inside the single market and customs union, I hazard a guess that the negotiations would proceed at a far greater pace and would reach a far more amicable destination. Amendment 87 would alter the definition of EU retained law so as to include only reserved areas of legislation, which would allow the National Assembly for Wales and other devolved Administrations to legislate for themselves on areas of EU-derived law that fall under devolved competency. After two referendums and hundreds of thousands of votes cast, the people of Wales chose to create a primary law-making Parliament in Cardiff that decides on the policies that matter most to the people of Wales in their day-to-day lives, such as education, health and the environment, to name but a few. The latest round of devolution saw the creation of the reserved powers model, stripping away the unnecessary jargon and constitutional complexity, which in effect means that the National Assembly for Wales has control over everything that is not explicitly listed as a matter kept by Westminster. It was meant to simplify matters and create clarity. In fact, the current Secretary of State for Wales went as far as saying that the change would settle the constitutional question in Wales for a generation. We can only assume that he was talking in terms of fruit flies, as before April 2018, when the newest devolution settlement comes into full force, we face nothing short of a constitutional crisis.
Is that not the crux for both Scotland and Wales? The basis of the Scotland Act 1998 was that everything not reserved was devolved. Bringing powers to Westminster instead of to where the competencies lie reverses that principle.
That is why the Scottish and Welsh Governments, in a joint declaration, said that this Bill is a naked power grab. That is what amendment 87 seeks to address. The UK Government's withdrawal Bill flies in the face of the reserved powers model. Rather than the new powers brought about by Brexit flowing straight to Wales, as would be the case under the reserved powers model, they will be kept under lock and key in Westminster in what the UK Government are calling a “holding pattern.â€ All we have is the UK Government's boy scout promise that one day we might get back those powers, as well as the ones we have lost for that matter. If devolution is a process, why should we assume that centralisation is not?
Ironically, the hon. Gentleman is describing the creation of the British superstate of the United Kingdom. The Government have taken to the centre all the powers that should be devolved. The supreme irony is that they were complaining that Europe is a superstate-it is not, it is a trade bloc. To get out of that trade bloc, the Government themselves are now creating a superstate.
That is the fear we face. Brexit is being used as a tool to reassert Westminster control over the British state, as opposed to the devolution settlement we have had since 1999. There is nothing to say that, come Brexit day, Westminster will not decide that all powers must make their way back to the corridors of SW1. It has come to the point where my party is proposing legislation in the National Assembly simply to defend the lacklustre devolution settlement we already have. My colleague, Steffan Lewis AM, has proposed a Welsh continuity Bill that would give the Welsh Parliament the legislative might it needs to take on Westminster and the power grab contained in this Bill. Last night, the House blocked Wales's voice on Brexit. My voice, and that of Plaid Cymru, cannot be silenced, and we will do everything we can to stop the constitutional and economic chaos that the Bill would impose on our nation.
There is a need for Parliament to be able to trust the Government, but does the right hon. Gentleman accept that the Government have indicated through their actions so far that they are not prepared to trust any Parliament in which they do not have an absolute majority? Were the Government prepared to trust Parliament to a greater degree, we would not be having to go through some of the constitutional hoops that are before us.
I think Parliament is doing a good job of explaining to Ministers exactly what Parliament wants, and I think it is going to carry on doing that. I have every confidence in Parliament. I look forward to hearing what more can be said from the Front Bench in due course. I think it is all going to be technical and so can be done expeditiously, but clearly Parliament needs to be satisfied. I am completely satisfied that in the areas for which the official Opposition would like there to be some kind of reserve or special status, there is absolutely no intent to amend, change or repeal on either side of the House. I have heard strong assurances from all parties that there is absolutely no wish to water down employment protections or environmental protections, and I see absolutely no evidence that anyone would try to do that. I am quite sure that, were they to try, they would soon discover that there was an overwhelming majority in the Commons, on the Government and Opposition Benches, of very many people who would say, “You cannot do that,â€ and we would have every intention of voting it down. Those laws already in place came via directives and are very much at the heart of what they are trying to protect. They are trying to protect something that Parliament has already put through as UK legislation. No manifestos or other party statements have threatened them, which implies that those things are at risk. It is also important to remember that when many EU directives were implemented-whether by Conservative, coalition or Labour Governments-that was often done in a way that went beyond the minimum standards that the directive required. Where it was possible to go beyond those standards, quite often successive Governments decided to do just that.
A recent TUC study found that many low-paid workers can be disciplined for taking time off for childcare. Does the right hon. Gentleman agree that the right under the parental leave directive to take time off work to take a sick child to the doctor or arrange care for an elderly relative is an important protection for British workers?
I will speak about the new clauses tabled by Opposition Front Benchers, particularly those on employment law, and about the new clauses in the name of my hon. Friend the Member for Lewisham East (Heidi Alexander). First, I notice that the right hon. Members for Broxtowe (Anna Soubry) and for Loughborough (Nicky Morgan), the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke), and others are here. They have been accused of not doing right by the people simply because they have been seeking to do their job in Committee. They have been accused in different quarters of being mutineers and trying to sabotage a process, when all they have sought is to do right by this country, this House and-most importantly of all-their constituents. We do not live in a police state. This is a not a dictatorship where the freedom of speech of individuals, both outside and in Parliament, is curtailed. The House needs to send a strong message to those outside that this democracy will not tolerate Members of Parliament being threatened in the way that was outlined by the right hon. Member for Broxtowe in her point of order earlier, because that is not in keeping with British values and how we do things in this country. There are Members who whip this up, suggesting that we are somehow running against the people when we try to do our job on this Bill. Those Members are grossly irresponsible and should think about what they are doing more carefully in the future, because we have seen the results in the national newspapers today.
Does my hon. Friend agree that it is about time that we all remembered that we have more in common than that which divides us?
Absolutely. I could not agree more with that statement. I turn in particular to new clauses 2 and 58, which were tabled by Opposition Front Benchers. It is important that we have more than assurances-that we actually amend the Bill-to protect some of the vital rights that are currently protected in EU law. In particular, we should protect their enhanced status. It seems from the comments made by the Solicitor General and other Government Members that we are essentially being asked to give Ministers the benefit of the doubt regarding these rights, particularly the employment law rights. We are being asked to give Ministers our confidence that they will protect these rights. Since I joined the House, I have seen the Government-first the coalition and then the current Conservative Government-ride roughshod, unfortunately, over some of the vital employment rights that people enjoy. There was the adoption of employment tribunal fees, which were thankfully struck down by the Supreme Court. The qualification period to claim for unfair dismissal has been increased since the Conservatives have been in office, and they have sought to change the statutory duties of the Equality and Human Rights Commission. In the light of that-never mind the disgraceful Beecroft report, which was commissioned by No. 10 in a previous Parliament-it is only reasonable that Opposition Front Benchers should secure amendments to the Bill to protect the enhanced status of those employment law rights.
Is it not important that we keep laws such as the equal treatment directive, which allowed many women, particularly in the public sector, to claim equal pay from their employer?
Absolutely. I could not agree more. I referred to the Beecroft review, and one of its recommendations was to do away with equal pay audits, which only underlines the point I have been seeking to make.
Will the hon. Gentleman give way?
I am going to be quick, so I will not take any more interventions. We have talked a lot about parliamentary sovereignty, which is why it is vital that we see changes made to the Bill, but the biggest threat to national sovereignty for many countries, particularly in the advanced world, is the power of multinational corporations in an era of globalisation. I am not opposed to those organisations per se, but they do need to be properly regulated and marshalled for the common good. However, they operate across borders, and, ultimately, if we want to regulate them properly and make them work particularly for lower and middle-income families in the advanced world-of course, people's discontent with globalisation was primarily the thing that drove them to leave the European Union-we have to do that across borders. Being in the EEA-being part of that framework-enables us to get the system to work better for people. If there is one thing we learned from the referendum we had in 2016, it is that they want us to change the system and better marshal it to their interests. Being in the EEA and EFTA helps to enable us to do that. That is why we should be focusing on it and why we need to pass the amendment tabled by my hon. Friend the Member for Lewisham East.
I would not like the public who are listening or watching to take the right hon. Lady to mean that the abuse, nasty remarks and things that are going on are only against people who were remainers. Some of us on the other side of the argument have received a huge amount of abuse, but we sometimes think it is probably easier and better simply to ignore it.
I would love to ignore death threats, but I actually find them quite frightening. As a result, I have in the past reported at least two to the police. The courts took it very seriously, I say gently to the hon. Lady. They sent one person to prison and suspended the other person's custodial sentence. I am glad that some people in this place take it seriously.
The right hon. Lady and I have had our differences during my time in Parliament since 2015, particularly when she was a Business Minister. We had some vigorous debates and disagreements when I, as a member of the Business, Energy and Industrial Strategy Committee, challenged her about the steel industry and the industrial strategy, but I felt that she was always very respectful of my view and the strength with which I held it. Why were we able to have such vigorous but respectful debate over such policy issues, but Brexit seems to bring out the very worst in public discourse in this place and beyond?
Does the right hon. Lady agree that the debates that we are having could be helpful to the Government? The Government are much more likely to be able to “do itâ€, as she puts it, if they reflect the consensus view of opinion across the House.
I completely agree with the right hon. Gentleman. I go on about what history will write about this place, and one of the observations of history will be the lack of debate until almost this point, which does us no credit. Another will be that at least two thirds, I reckon, of the people elected to this place are of the same view on the customs union and single market.
The right hon. Lady is making some very good arguments, which chime with the SNP's position. The difficulty is that the Conservative party and the main Opposition Labour party have the same policy; they are both wedded to leaving the single market and leaving the customs union. Unfortunately, parliamentary arithmetic is against us in this matter, and that situation is taking the UK over the cliff edge.
I am not going to adopt the hon. Gentleman's tribal language, because I am trying to build a consensus. I understand why Conservative Front Benchers find themselves in the position that they are in. Equally, I understand the difficulties that the Labour party has. The simple, harsh reality is that people from all parties voted both leave and remain. One of our biggest problems when we try to resolve this issue is immigration. We need to have a proper debate about immigration and make the positive case for it. We need to explain that there is not a small army of people sitting at home, desperate to work in the fields of Lincolnshire and Kent or in the food processing factory in my constituency, for example. We need to explain that people come to our country to work and that we would be lost without them-not just in the fields or the factories, as I described, but in our great NHS. I have been speaking to businesses, as many of us do, and the facts I am told are that many of our manufacturers have seen a 10% decline in the number of workers from the European Union and that they cannot find people in our country to replace them. This is serious stuff-I do now want to digress and get into the arguments about immigration-and it is our job as politicians to lead such arguments. We have previously discussed the proud history of those on both sides of the House in leading on social change, and we as politicians have an absolute duty to make such a case.
Does the right hon. Lady not agree that what we are really discussing is democracy and how we interpret it? As much as I agree that the language has sometimes gone overboard and been very unpleasant for some of us, we are grappling with this because democracy is a very difficult issue.
The hon. Lady may well be right. I am trying to find solutions. I am trying to find a way to get the best solution for everybody in our country, while putting the economy at the heart of this. The joy of remaining in the EEA, and indeed in EFTA, is that it is a model sitting on the shelf that can be taken down, dusted off and perhaps tweaked here and there. The benefit for the great British people is that-hallelujah!-the job will pretty much be done, and it will enable our Government to get on with the great domestic issues that we must address. It certainly means there will be a “Hoorah!â€ right across businesses in this country, because it will give them the certainty and the continuity for which they are desperate, and it will deliver economic benefits. There is not much else to say, but if it is pressed to a Division, I will certainly vote for new clause 22.
There are certainly several amendments in the group that I will support, if they are pressed to a Division. I very much welcome new clause 55, which was tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve) and relates to enhancing scrutiny. That is clearly something that we need, as it was much debated on Second Reading, and is now being discussed in Committee. If new clause 22, which was tabled by the hon. Member for Lewisham East (Heidi Alexander), is subject to a vote, we will certainly support that. I welcome the return of the right hon. Member for Witham (Priti Patel), who is clearly making herself the standard bearer for Brexiteers on the Back Benches. I am sorry that she is no longer in the Chamber, but she said in her speech that Brexit was not about cutting regulations. However, that does not quite sit with what she has said previously about Brexit being an opportunity for widespread deregulation. I am afraid I must ask why we should believe what Government Front Benchers are now saying about their intentions when many members of the Cabinet, Ministers and Back Benchers are on record as stating very clearly that Brexit will provide opportunities for deregulation. Members will be pleased to hear that I will make only some brief remarks.
I seem to recall it was not so long ago that the right hon. Gentleman was in a coalition Government in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) insisted that we withdrew two regulations for every new one that we introduced. Does not that make the right hon. Gentleman a regulation cutter, like the rest of us?
I would like to speak in favour of new clause 2 and new clause 58, which have been tabled by those on the Labour Front Bench. There is an idea that we should be giving the Government the benefit of the doubt on these issues. There have, however, been so many statements and acts from those on the Government Benches to undermine employment rights, from the Trade Union Act 2016 to many other measures, that we need to ensure we anchor the rights of our workforce in the Bill. The Exiting the European Union Committee met Mr Barnier in Brussels last week. One point he made very clearly is that as we move towards a future relationship, the so-called deep and comprehensive free trade agreement will need to be ratified by the Parliaments of the member states, plus a number of regional Parliaments. They will not accept anything that he described as “social dumpingâ€-they will not accept undercutting and they will not accept unfair regulatory practice-so if the Government are serious about getting a deep and comprehensive free trade agreement with the EU they will have to recognise that regulatory equivalence will have to be a critical part of it. This is about not only securing rights in this country, but the economic interests of the country if we are serious about having that future relationship.
I entirely endorse what the hon. Gentleman says about a free trade agreement with the European Union requiring regulatory equivalence. Actually, this is not a uniquely European thing or a malicious Brussels proposal. Modern trade agreements in a globalised economy all depend, more than anything else, on mutual recognition or regulatory convergence in the sectors where free trade is going to be allowed.
The right hon. and learned Gentleman is, as always, absolutely correct. We need to recognise the umbilical cord connecting the regulatory playing fields to the trade agreements because of the nature of unfair competition and unfair practice. None of the EU member states will accept such agreements without that. What was particularly interesting about what Mr Barnier said was that the comprehensive trade discussions will be on the basis of article 218 of the treaty, which requires ratification by 27 member state Parliaments and eight regional Parliaments. The level of scrutiny, therefore, will be even greater under the future relationship than under the transitional relationship, which we know will be a carbon copy of the status quo, including on ECJ jurisdiction. I think the Government have accepted that, although there seems to be an attempt to wriggle out of some aspects. The fact remains, however, that a transition deal will be a carbon copy of the status quo.
I would be grateful if the hon. Gentleman could explain how often, and in what circumstances, the arbitration court has departed from the decision making and precedence of the ECJ.
This is a clear case of a “before and afterâ€ conversation. The court would be substantially altered were the UK to have judges on it. It would be a category shift in the role of the court. It would require negotiation, of course, but I am offering an opportunity to square the circle in terms of the many contrasts, conflicts and competing agendas around the delivery of a Brexit that works for the whole country and delivers for the millions of people who voted in the referendum and who are not ideologues on one side or the other. They want this Parliament to get on with the job and to deliver a Brexit that works for the whole country, and indeed helps to reunite our country. In that spirit, new clause 22 is so important and offers so much. There is much conversation about models. The Canada model does not include services, while the Ukraine model is new and untested. The EEA-EFTA model is well established and well understood. It would give our business community and our economy the certainty that they so desperately need.
Will the hon. Gentleman give way?
I will not, as so many Members want to speak. I am afraid that I must make progress. I want to close my remarks by saying that we are in a hiatus that is deeply damaging to the British economy. We are drifting and rudderless. We are floating in a mist of ambiguity and indecision on the part of the Government, because they refuse to set out the road map to our future relationship. We know that there is not time to do that bespoke deal and that we need a well established and well understood deal off the shelf. We also know that it is necessary to trigger article 127 of the EEA agreement to leave the EEA, because we signed up to that agreement as a single and sovereign contracting party. Legal opinion is divided on the issue. Therefore, it becomes political. It is time for the House to show some leadership, have the debate about our future relationship with the single market and take back control in this sovereign Parliament. I therefore commend new clause 22 to the Committee.
I feel ashamed of this country and of this Government when I see so many good people feeling so unwelcome and feeling that their only recourse is to leave this country. That is not right. I believe that membership of the EEA is a compromise that we might look at, going forward. I commend very strongly the speech and the amendment from the hon. Member for Lewisham East (Heidi Alexander). She made the incredibly powerful point that we have had so much rhetoric about pulling together, about not dividing society, and yet EEA membership would offer a compromise that perhaps people could gather around. There was no mandate on the ballot paper on 23 June for the kind of extreme Brexit that this Government are pursuing, pushing us potentially to the very edge of that cliff and beyond. That was not on anyone's ballot paper. There is no mandate for that. So if there is to be any seriousness about bringing people together, to try to heal the deep rifts that there now are in this country, proposals of the type set out in new clause 22 will be vital.
The two “retained enhanced protectionâ€ new clauses tabled by the Leader of the Opposition are inconsistent. The hon. Member for Greenwich and Woolwich (Matthew Pennycook) did not refer in his speech to the fundamental rights as being part of new clause 2 itself. When I compared the two new clauses, I saw considerable inconsistencies. For example, new clause 58, entitled “Retaining Enhanced Protection (No. 2)â€, includes the word “repealâ€, and the words “environmental standards and protectionâ€ are included in new clause 58 but not in new clause 2. That presents a problem, because, as far as I understand the position, it is possible to debate and vote only on the new clauses in question. Which will Members vote on, if they do vote? I think it important to put that on the record, because there are serious inconsistencies between the two. There has been a great deal of metaphysical discussion about the whole question of retained law. Let me say to those who have not had the benefit of doing so that it is quite useful to read pages 52 to 58 of the House of Commons briefing. It saves a lot of time, including debating time.
I know how many speakers have put in for the next debate, so I will be brief. It has been a good debate with many thoughtful contributions from both sides of the Committee, and I genuinely welcome the Solicitor General's constructive tone. I also welcome the guarantee that, whether amendments are passed or not, we will have a Report stage. That suggests to me that, as we have long suspected, the Government draftsmen are busily at work. However, on the central purpose of new clause 58-the need to secure enhanced protection for retained EU law from secondary legislation contained in other Acts of Parliament-the Minister offered no meaningful concessions. As such, I will test the will of the Committee on that matter when the time comes, but I will not press new clause 2 to a vote. I beg to ask leave to withdraw the motion.
I beg to move, That the clause be read a Second time.
I am pleased to speak in support of new clause 30, which is in my name and those of many other hon. Members, as well as new clause 60 and amendments 93 to 95. I am hopeful of finding support across the House for new clause 30, on animal sentience, because I do not think it should be controversial. By way of background, in 1997-20 years ago-the UK Government, during their presidency of the EU, convinced the then 14 other member states that EU law should explicitly recognise that animals were sentient beings, and not simply agricultural goods like bags of potatoes that could be maltreated with impunity. In other words, it was a recognition that, like us, animals are aware of their surroundings; that they have the capacity to feel pain, hunger, heat and cold; and that they are aware of what is happening to them and of their interaction with other animals, including humans. The resulting protocol, which came into force in 1999, changed how animals were regarded and ensured that future EU legislation was not implemented on the basis of the lowest standards of animal welfare, but that it took animal sentience into account. That understanding has since informed more than 20 pieces of EU law on animal welfare, including the ban on sealskin imports, the ban on conventional battery cages and the ban on cosmetics testing on animals. In 2009, the original protocol was incorporated into the Lisbon treaty as article 13 of title II. The Government have rightly and commendably committed to transferring all existing EU law on animal welfare into UK law under the Bill, but because the text of the Lisbon treaty is not transferred by the Bill, the wording of article 13 on animal sentience will not explicitly be incorporated into UK law. As things stand, despite having one of the longest-standing animal welfare laws in the world-something of which we are rightly proud-the UK has no legal instrument other than article 13 of the Lisbon treaty to provide that animals are sentient beings.
EU laws on animal sentience have allowed Wales to lead the way on animal welfare. When Plaid Cymru was in government, for instance, we banned the use of electric shock collars on cats and dogs. Does the hon. Lady agree that as well as explicitly incorporating the wording of article 13 on animal sentience into UK law, the UK Government should not hinder or stifle any future progress on animal welfare in Wales by dictating what it can and cannot do in areas of devolved competence?
I thank the hon. Lady for her intervention, and I absolutely support what she says. Last night, I proudly went through the Lobby on amendment 79, which would have given the devolved Administrations more of a say on the Brexit process.
We in this country are of course well known throughout Europe as a nation of animal lovers. The hon. Lady was kind enough to say that we started off this whole process. Once we leave Europe, will she join us in ensuring that in our own laws we have the best animal welfare protection in the world?
As a passionate animal rights and animal welfare campaigner, I obviously want the best possible animal welfare laws in this country and in all countries, and I will not diminish my commitment to that. I simply want to say that the omission in not transferring this bit of EU law into UK law-I understand why it cannot be transferred directly-is something that we could very easily rectify. As I say, I do not expect anyone to find any great controversy in doing so. New clause 30 is simply seeking to make sure that we close that gap. I am not for a moment suggesting that the result of our not closing it would be that we all suddenly went out and started murdering kittens-no one is suggesting such a thing-but I am saying that this is an important protocol. It was important enough for the British Government to use all their influence in the EU to have it included in the Lisbon treaty, and we should continue to have it in UK law.
Does the hon. Lady agree that, once we have left, we will be able to increase our animal welfare standards-for example, by stopping the live transportation of horses and other animals, which we are currently forbidden to do-
What about the badgers?
The hon. Gentleman asks about badgers. I have actually been leading some of the campaigning against culling badgers. I hope that the hon. Lady agrees that we will have the ability to raise standards where we are currently forbidden to do so.
No one would be more delighted than me if we had the political will, which is as important as the political legalities, to make that happen. If there was the political will to secure higher animal welfare standards in this country, no one would be happier than me. With new clause 30, I am simply suggesting that the principle of animal sentience is an important one. In a sense, it is almost by accident that the law will not be transposed. It has been very important in the development of animal welfare law in this country, and I therefore hope that there will be agreement across the House simply to close this loophole.
The hon. Lady is making a great speech. We completely agree with her and want to take her side on this issue. Does she agree that the reality is that high animal welfare standards sometimes mean higher input costs, and that in the big wide world, as we seek new deals with countries that perhaps have much lower animal welfare standards, there will be an economic temptation to lower our standards? That is why it is so important, as she says, to incorporate those welfare standards in the Bill.
The hon. Gentleman makes an incredibly important point. He has anticipated what I was going to say, but he is exactly right. When it comes to such trade agreements, it will be even more important that our standards are absolutely enshrined in law, so that they cannot be bargained or negotiated away in the interests of getting a better deal. The Secretary of State for Environment, Food and Rural Affairs has said that he believes this gap should be closed. I very much welcome his support, because this is an important ethical and practical issue. It is of great significance to the UK's ability to trade freely with the EU27 in the future. As I have said, the UK was the original proposer of the protocol, so we surely have a responsibility to ensure that its provisions are not lost from UK law by our withdrawal from the EU.
On that very point, there cannot be a green group that the Secretary of State has not embraced or an animal welfare group he has not cuddled since he has been in post. Is this not a good test of whether the Government will turn their words into action? This new clause and other amendments need to be added to the Bill, otherwise it is just a case of warm words and no action.
The hon. Gentleman's intervention is spot-on. This is exactly such an opportunity for the Government to demonstrate that there is political will behind their words. Let us hope that, as a result of new clause 30 being on the amendment paper, we can agree it tonight, and then get on with many of the other big issues. I simply say that I am looking forward to the Minister's response, but if it is not satisfactory, I very much hope to press the new clause to a vote.
The intervention by the hon. Member for Stroud (Dr Drew) was a little unfair on the Secretary of State, because he is not just using warm words. There has been a flurry of activity and real commitment in the past four months, including banning neonicotinoids just a few days ago, placing CCTVs in every abattoir in the country, raising sentencing from six months to five years for those who engage in cruelty to animals, and banning the ivory trade. I could spend 10 minutes reeling off the Secretary of State's achievements, promises, commitments and actions. We should celebrate that. It is extraordinary.
I thank the hon. Gentleman for his intervention and I agree with him-so far. There are still more tests to be applied to how far-reaching this Secretary of State is, but the commitments he has made so far have certainly been welcome. I hope that he will also take strong action on this Brexit Bill, in terms not only of new clause 30 but of the crucial issues of environmental governance and principles. To be honest, what I have heard so far is that different commitments will be put into national policy statements, but that is not good enough. They are not robust or rigorous enough. The jury is still out on some things, but I certainly join the hon. Gentleman in saying that the progress so far has been pretty extraordinary by the standards of previous Secretaries of State.
Does not what has just been said simply show that the Secretary of State can lift standards within the EU? The whole point about the EU is that it is not possible to push standards below a minimum threshold, but it is possible to do so outside the EU. In the future, therefore, if we are out, they can go up and down; but if we are in, they can go only up.
I thank the hon. Gentleman for his intervention. It is not just about the fact that they can go only up; if we are in the EU, we can actually have an influence on the other 27 member states, as we have done on many issues, not least that under discussion, and make sure that animal welfare is improved not just in our own country but right across the EU28.
Does the hon. Lady agree that the ban on neonicotinoids would not have taken place were it not for years of sustained campaigning by environmental groups and scientific research by the European Commission? It stated that we should invoke the precautionary principle to protect our bees from those potentially toxic chemicals, but the precautionary principle will no longer be in place when the Bill is enacted.
The hon. Lady is making a valid point, but some of the EU's principles are lower than ours. For example, it will not allow us to ban microbeads. We are very concerned about plastics in the water, so I look forward to being able to enhance our waterways by being able to ban microplastics.
I disagree with the hon. Lady. I do not think there is anything relating to the EU that is stopping us from banning microplastics. We have just done it, and in doing so we have demonstrated how the UK can show leadership. That is not just happening here in the UK. We have an influence we should be proud of, and we should be rather sad that we will probably lose it as a result of this whole process.
On a point of clarification, the hon. Lady said that she was not aware that we could not ban microbeads in plastics, but an independent report from the House of Commons Library warns that any attempt to impose a unilateral ban could break EU free trade laws because microbeads are in products. I think she will actually find that even though the Government wanted to ban them in July 2017, we were warned that we would be in breach of EU trade laws if we did so.
I really do not understand the hon. Lady, because we have done it-it has been done. All the fears that we might not be able to do it because of EU law have been absolutely shot down by the fact that we have done it. It has been recognised-done; over; finished; kaput.
The Environmental Audit Committee had a very interesting meeting this morning at the Department for Environment, Food and Rural Affairs with its Under-Secretary, the hon. Member for Suffolk Coastal (Dr Coffey), who is in the Chamber. We look forward to the statutory instrument that will ban the manufacture of microbeads from 1 January and their sale-hopefully-from 1 July. I hope it will be laid before the House very shortly and that we are all able to sit down and pass it very swiftly.
I am grateful to the hon. Lady for that helpful update. There are many myths about what the EU prevents us from doing, so it is useful to get that clarification. I was just explaining the different areas in which we need these environmental principles to apply. My concern is that the Bill delivers on only the first: the interpretation of retained EU environmental law. Clause 6(3) states that general principles of EU law will be retained in UK law, and that the courts will be able to interpret EU-derived law in accordance with the retained general principles of EU law, but it is not yet clear whether the environmental principles will be considered to be general principles of EU law. Neither the ECJ nor the treaties have defined “general principlesâ€. The concern is that if the Bill does not explicitly recognise environmental principles as general principles, they could be lost altogether. Even if they are retained, as they should be, the Bill explicitly limits how they could then be applied in two ways: first, UK courts will not be able to overturn decisions or challenge actions that do not conform to the principles; and, secondly, there will be no compulsion on public bodies or businesses to refer to the principles in future actions and decisions.
The environmental protections should be enshrined in UK law because we do not want the Government to go the way of the United States on the environment, given the damage that the Trump Administration have done. The Government could be tempted to follow that.
I agree. This country will be very interested in forming more free trade agreements as soon as possible, and under circumstances that might not necessarily be in the best interests of our own environment and standards. It therefore even more important that these things are enshrined in law, as the hon. Gentleman says. Paragraph 3 of schedule 1 explicitly limits the legal remedies available when general principles are contravened. It will not be possible to take an action in court, or to challenge or quash any law or activity on the basis of the principles. The courts will be unable to overturn decisions, and individuals and non-governmental organisations will not be able to challenge decisions on the basis that they are not compatible with environmental principles such as sustainable development. In short, as the Bill stands, if a business or public body contravenes the principles of environmental law, it will not be possible to challenge that in court. That is a clear departure from continuity, as the EU courts have strongly upheld the environmental principles, such as by overturning planning decisions that contravene the precautionary principle. The level of environmental protection after exit day will not therefore be as strong and rigorous as it was before exit day, unless we accept new clause 60 and do something right now to enshrine these principles in our law.
Is it not vital for air quality that we enshrine these principles in UK law, given that the Government have been told four times by the courts to improve air quality but failed to do so? It is essential that actions can be brought to enforce such really important things.
Is not one of the central problems of the Bill that the legislation is so broadly drafted that there is no effective means for the courts to exercise judicial review, and that the reason we need these principles in it is to enable the court to get a grasp, which would be much better than if there is nothing there at all? Otherwise, we would have to live with a hotch-potch of precedents, which the Secretary of State referred to in the Select Committee.
I am delighted that the hon. Gentleman asked that question, because more or less the whole of the rest of what I want to say answers that very point. I think there is a better structure available to us, which will enable Parliament to be much more certain that the courts will be enforcing a set of much more detailed principles in a much more concrete and much more certain manner. I think that would answer the hon. Gentleman's point and reassure him, and I believe it would do better at achieving what the hon. Member for Brighton, Pavilion wants to achieve than her own suggestions.
May I explain what I have in mind? I am more than willing to give way to the hon. Gentleman again if he does not agree as I go along. The first point about a better structure is that it does indeed need to have a statutory base, but that need not be in this Bill. In fact, I think it is much better that it should be an environment Bill, because an environment Bill gives the scope and opportunity to determine these things in much more detail and much more carefully, and gives the House, rather than what we have now-two and a half hours, not all of which will be spent on this topic-days and weeks of consideration in both Houses. That is the right way to do long-term environmental legislation.
The Environmental Audit Committee recommended, after its inquiry into the future of the natural environment post Brexit, that the Government bring forward an environmental protection Bill in order to do just what the right hon. Gentleman says, but there is no sign that the Government are prepared to do so. In the absence of such legislation, does he not think that the second-best option would be to protect the environment by supporting new clauses 60, 67 and 28, which are on the table today?
Well, we must leave it to Ministers to speak for themselves, but I have to say that the discussions that I and others had with the Secretary of State, who, as people have remarked in this debate, is of a very different cast of mind from some previous Secretaries of State, suggest to me that actually there will be an environmental protection Bill coming forward. I think that is- Ah! Maestro! With perfect timing my right hon. Friend the Secretary of State comes into the Chamber, at just the right moment for him to signify with a nod, if nothing more, that the possibility of proper environmental legislation in the form of a new statute is on his mind.
indicated assent.
And his mind is one that is capable of grasping these matters, if ever the mind of a Member of the House of Commons was. The first point, then, is that a proper statutory basis is superior to a specific amendment to the Bill.
Why does the right hon. Gentleman think that the two are mutually exclusive? Why could we not have the security of knowing that we have a provision in the Bill? We are delighted with the new Secretary of State, but how long will he stay? Who knows? Who might come next? We want the certainty of the Bill now, as well as the nice hope of the environment Act that so many of us have been requesting for such a long time.
First, I am confident that this Secretary of State will be here for rather longer than some other Secretaries of State have been recently. I welcome that, because I think he is a very, very fine Environment Secretary. Secondly, I am not saying that it is inconceivable that there could be two pieces of legislation, but I think it rather inelegant to legislate in a slightly awkward way, and then to repeal that legislation in a Bill that would probably start its passage before the passage of this Bill has been completed. I would prefer it to be done properly, although opinions may differ.
We have had three Environment Secretaries in two years, and we have all been waiting for the famed environment plan for two and a half years. A 25-year environment plan will be a 22-year environment plan by the time it is actually published. What gives the right hon. Gentleman the confidence to assume that an environment Act, which would have to be underpinned by the environment plan, will be in place by the time we leave the EU, especially if we end up leaving without a transitional deal and crashing out in March 2019?
The idea that judicial review will be an adequate recourse is misguided. Judicial review is about only the process, not the outcome. Moreover, it is becoming harder and harder for people to obtain the necessary funds: plenty of people would not know how to begin to do it. I also do not share the right hon. Gentleman's confidence about the way in which a court will necessarily regard a national policy statement. An NPS does not have the same quality of judiciability as primary legislation.
Perhaps we will not reach agreement about this. I disagree with every part of what the hon. Lady has just said. First, judicial review has been a highly successful mechanism for environmental campaigners. It is, in fact, from judicial review that the clean air measures have arisen. Secondly, the reason why it is particularly effective in the case of a national policy statement is that a policy statement is a policy statement by Ministers and therefore creates a presumption of Wednesbury unreasonableness if it is departed from, so it is very easy to use as a tool for judicial review. Thirdly, judicial review is the mechanism that the principles in the new clause of the hon. Member for Brighton, Pavilion, or the Opposition new clause or the new clause of the hon. Member for Wakefield, would have to operate on. It is not the case that the courts in our country would simply take a set of principles and apply them to some set of cases. They would not know what to do with them. The Government would have to be judicially reviewed for failing to apply those principles in their policy.
Will the right hon. Gentleman give way?
I will give way in a moment. It is much better to be in a position where we can take the Government to judicial review for failing to apply a much more detailed set of policies, which are the Government's policies, as approved in the House of Commons by resolution, and which have been fully debated and where we then know whether the court is likely to find that the action is or is not in accordance.
I will give way to both hon. Ladies shortly, but first I want to come to a further point that is an important part of the architecture. I do not personally believe that even the combination of an environmental protection Bill and an NPS emerging from it and under it would be sufficient. This exactly answers the last point of the hon. Member for Brighton, Pavilion. I accept that it is difficult for campaigners and others to use the vehicle of judicial review, which is why I and some of my hon. Friends have advocated what we have proposed, and why we have agreed with the Secretary of State.
indicated assent.
The Secretary of State is again nodding. That is why we have agreed that it is necessary under that same statute to create a body which is a prosecutorial authority, wholly independent of Government, along the lines of the Victims' Commissioner, the Children's Commissioner, the Office for Budget Responsibility, or the Equality and Human Rights Commission-we can choose which model-and which is an entity that is small and lean but, like the Committee on Climate Change, very serious. It would be established under statute, and charged with a duty under statute to ensure that the NPS is observed. I advocated the CCC when I was first working with Tony Juniper to get what became the Climate Change Act accepted in this House, and at an early stage I came to believe that the combination of clarity of objective and a body wholly independent and staffed by serious experts was a powerful mechanism, and so I think it has proved to be.
I am interested in what the right hon. Gentleman is saying. Is he proposing that the body he is describing would have the same power of sanction that currently-as we have been talking about-the ECJ has, in the ability to fine Governments, which is what finally made them conform to the air quality laws, for example? Will this body have the capacity to do something as strong as fining Government to make sure they put their house in order?
In a word, yes, because this body will be able to take the Government to court, and the courts have the power to injunct, and if the Government fail to observe an injunction, results follow. The body must have that capacity. I am not envisaging-and I know the Secretary of State is not envisaging-anything remotely like the Environment Agency or Natural England, which are part of the DEFRA family, if I can put it that way. This agency will not be an agency of the state, carrying out the Government's operational objectives; rather, it will be independent of the Government and will continuously be judging the Government's actions, taking on board the complaints of others, and using the expertise. Finally, before I give way again, let me say that I hope the hon. Lady will take some comfort from the fact that ever since I began to propose this with some of my hon. Friends, and started discussing it with the Secretary of State, those who most disagree with her and me about these things have been sticking pins in voodoo images of people like me, because they are afraid that this body might be very effective. I take some comfort from that, and hope the hon. Lady will, too.
I am interested to hear the right hon. Gentleman develop the ideas around this new body to fill the commission-shaped hole, which was what the Secretary of State described to our Committee, but I want to press the right hon. Gentleman on the point of remedy, because there is no such body. The CCC sets out goals, but does not have any remedy against Government if we fail to meet our targets; it only has the power of its authority in saying that we are missing the fourth carbon budget, or the fifth carbon budget, and so forth. Secondly, on judicial review, the Ministry of Justice proposed to increase the fees charged to individuals and environmental groups in clear breach of the Aarhus convention, which guarantees access to environmental justice through European law for everybody and caps the costs. The only reason why that proposal was overturned was a judicial review brought by big charities such as the RSPB, not because the Government were aware of the principles.
The hon. Lady is actually making my point. If one looks at new clause 60 or new clause 67, they clearly do not create a right of action against an individual. They create the possibility of judicial review of Government, and I accept the good intention of doing so. Instead, we have the possibility of judicial review of Government not in the hands of some private charity, group, NGO or whatever, but through a taxpayer-funded, statutory body that can take the Government to court, where the Government will be measured against a precise policy statement that is authorised by this House. That is a much more powerful vehicle. In fact, it is the most powerful vehicle available to us for the control of Government. We know nothing higher than the Supreme Court as a means of holding Government to account in relation to their own policies, as approved by the House of Commons. It is an ironclad method of proceeding. I accept that we would of course have prolonged discussion of what was in the policy statement and further prolonged discussion of exactly how the body was structured. There is a basis for debate, but the fundamental structure is much more powerful than what is proposed in either of the new clauses.
I congratulate the right hon. Gentleman on some nice blue-sky thinking about what could come in the future, but I do not see how that is mutually exclusive to the new clauses that we are debating. They relate to values that the UK has signed up to through, among other things, the Rio principles and the Aarhus convention that are currently underpinned in EU law to ensure that they are binding in British law. Leaving the EU would mean that there is no underpinning for our courts to rely on them. The new clauses would allow the courts to use them and rely on them in other judgments. If the right hon. Gentleman's blue-sky thinking comes forward, it could happen then as well.
That was the subject of a previous intervention, and what I said in response then I will say again. The application of the principles in this Bill is a possible way to go and is not necessarily incompatible with later legislation, but it seems rather awkward to legislate inadequately and then to produce a good piece of legislation that repeals the inadequate legislation-we certainly would not want them to conflict-when it is extremely likely that the Bill in question will actually be marching through the Houses in parallel with the Bill that we are now discussing. My second point is that the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle)-this is part of the reason why we have a slight difference of view about the means-has far more faith in the current TFEU principles than is justified. They are principles of procedure that govern proceedings and hence have a big effect on the formulation of EU directives. Had they been part of EU law in a strict sense, they would of course have been incorporated into the Bill that we are discussing, and the problems that the hon. Member for Brighton, Pavilion and I agree exist about this Bill not carrying them into UK law would not exist. At the moment, we have weak procedural principles, and new clauses 60 and 67 seek to take those weak procedural principles and turn them into a weak procedural principle of UK law. I am recommending, and I think the Secretary of State is happy to take forward, a solid statutory basis for a powerful body operating against a statutorily based national policy statement approved in this House in order to create a binding mechanism that is far more ironclad than what is currently on offer.
On adopting EU law into domestic law, I am sure the right hon. Gentleman will accept that there is more than one legal jurisdiction in these isles. On that basis, does he believe the UK Government should be discussing and seeking agreement with the Scottish Government on how it should happen in Scotland?
I leave that to the Government, but it is noticeable that new clauses 60 and 67 would have UK application. I take it that we will be able, by one means or another, to ensure that such legislation as comes forward is so discussed with the devolved authorities that it, too, has some kind of UK application. The precise means of doing that I am neither competent nor desirous to discuss in the context of these amendments.
After Brexit, we all want to have the best environmental standards possible. Before my right hon. Friend sits down, will he return to new clause 30? If he reads new clause 30, he will see that it drives a coach and horses through the entire principle of the Bill, because in matters concerning animal welfare it would make, for all time, our courts and Supreme Court ultimately subject to the treaty of Lisbon. In that sense, new clause 30 is therefore a wrecking amendment.
I did not intend to return to new clause 30, which I did not table, but my hon. Friend may well be right. I am sure the Government will have something to say about sentience in UK domestic law. I am under pressure from the Whips to end, and I certainly will end. I am very sorry. I just express the hope that we can at least continue to discuss this. My hon. Friends and I, as well as the Secretary of State, have tried to discuss this in some detail with the environmental groups, and we should continue that discussion because there is a golden opportunity to do something very good for our country and for our environment.
With respect to compliance, does the hon. Gentleman recognise the importance of strong UK frameworks? Although we have different jurisdictions throughout the UK, we have to make sure that we have standards that maintain the integrity of our internal market and protect the UK and the Union that we all support.
I agree with that, and I would add that if the environmental principles are brought into UK law in the fashion that I am describing, they will of course inform the frameworks for the devolved legislatures.
Has the hon. Gentleman given any consideration to what the words“enforced, allowed, and followed accordinglyâ€are supposed to mean? I confess that, on reading clause 4 1(b), I found it very difficult to understand what the Government intended.
That point is very well made. I expect that other hon. Members will touch on that in more detail when they speak to amendments 93 to 95. We support amendments 148 to 150 and new clause 34-the efforts of my hon. Friend the Member for Stretford and Urmston to remedy deficiencies in the Bill with respect to the rights of children. Her amendments are designed to preserve in domestic law any rights or obligations arising from the UN convention on the rights of the child, to ensure that Ministers act in such a way as to comply with that convention, and to protect from the delegated powers in the Bill the rights and obligations that flow from the convention.
I am grateful for the opportunity to speak in support of clause 4 and to respond to today's second group of amendments. I also appreciate the constructive tone of the hon. Member for Greenwich and Woolwich (Matthew Pennycook). The two strategic objectives of the Bill are to take back democratic control over our laws, and to do so in a way that ensures a smooth Brexit. Clause 4 helps us to deliver on both aims. Before talking about the amendments and the application of that clause, it is worth briefly explaining the value of clause 4, which is a sweeper provision. Clause 2 retains UK implementing legislation deriving from EU instruments, and clause 3 incorporates direct EU legislation. Clause 4 picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972. In particular, it will ensure that we retain, on day one of exit, general principles of EU law and all directly effective rights. That means rights deriving from EU treaties that are sufficiently clear, precise and unconditional that they do not require separate bespoke implementing legislation. Instead, to date, they are relied on as national law without reference to any separate implementing legislation.
Will the Minister give way?
I am going to make a little progress; I am mindful of your strictures, Mr Streeter. I will take interventions on the amendments, but let me just explain the relevance of clause 4. I will give just a flavour of the kinds of rights or obligations captured, which would include the EU-derived rights to equal pay and non-discrimination on grounds of nationality. In the context of something like competition law, it would include the prohibition on the abuse of a dominant position. The explanatory memorandum gives further illustrations. Ultimately, given that the criteria for directly effective rights are determined judicially, the scope of such rights must be for UK courts to determine. That is why it would not be right for us to draft our own definition or definitive list. Clause 4 only converts rights as they exist and are recognised immediately before the date of exit. It serves as a snapshot of EU law on the date of exit, and guarantees a smooth legal transition out of the EU-in respect of everything of value, importance and significance-for businesses and citizens up and down the country.
That brings me neatly to the question as to what it means that a right should be “allowedâ€ immediately before exit day. It seems that that word particularly, of those three, “enforced, allowed and followedâ€, is astonishingly opaque.
I will come to the precise application shortly, but I am happy to take another intervention if my right hon. and learned Friend does not think I have answered his question sufficiently by the end.
I give way to the Chair of the Environmental Audit Committee.
The right hon. and learned Member for Beaconsfield (Mr Grieve) has raised this point: the rubber does not hit the road in this clause when it comes to procedures, such as when we legislate for chemicals. There is no body in this country that legislates, monitors and enforces chemicals; it is all done at a European level. There is no body extant in this country to do that on exit day.
There are bodies that deal with these kinds of things, such as the Health and Safety Executive, but I will come to that when I deal with the sector-specific applications of this principle.
I am thrilled the Minister has come back to chemicals, because we spent about three months of our lives looking into the issue. The point is not whether these things exist in our law; the point is that the body that enacts the registration, evaluation and authorisation of chemicals will not exist on exit day, and the registrations that British companies will have paid a quarter of a billion pounds for will fall. That is one of the big problems.
The Chair of the Select Committee makes her point powerfully, and she draws quite an important distinction, which has infused some of the debates today and yesterday-the distinction between copying, pasting and preserving the substantive law and having the institutional framework. If she will allow me, I will shortly address that point squarely. On the substantive law, I want to make the wider point that, beyond the EU framework, the Government remain committed to the internationally recognised environmental principles set out, for example, in the 1992 Rio declaration, but also in the many other multilateral environmental agreements to which the UK is a party. These include the precautionary principle and the “polluter paysâ€ principle. We also continue to be a party to the Aarhus convention on access to information and decision making on environmental matters, which was referred to earlier. Leaving the EU will not diminish our commitment-
It may well be that this comes from the European Communities Act, but I still find the word “allowedâ€ very difficult to understand in this context, in view of the plain meaning of subsection (1)(a). As one of the questions that we have perpetually raised is that our own domestic courts will have to sort this tangle out, I am concerned about any form of drafting that appears to have an ambiguity in it. It is very hard to understand what paragraph (b) adds, and my hon. Friend has not actually explained that.
I have endeavoured to explain that the aim-and, I believe, the fact-of the Bill and the clause is to reflect and replicate the device used in the ECA. I always listen to what my right hon. and learned Friend says, but if that device has worked reasonably tolerably until now, I question why it cannot continue to serve the same purpose on exit. As ever, if he has a better formulation, I am very happy to look at that with him between now and Report to see whether there is a better way of doing this. Let us be clear about the intention of clause 4. It is a sweeper provision to make sure that we have an accurate snapshot of EU law reflected in UK law on the date of exit.
Will the Minister give way?
I will give way one more time, with the tolerance of the Chair.
That is enormously kind of the Minister, particularly since the Solicitor General earlier this afternoon persuaded me that his colleague would answer the question that I raised with him in an intervention. Before we are asked to agree to clause 4 standing part of the Bill, will the Minister kindly explain clause 4(3)? It states that all of clause 4 is subject not only to clause 5 but, more importantly, to schedule 1, which, as the Minister knows, stops the general principles at midnight on exit day. We listened to a lot of debate and argument yesterday about clarity and certainty for the courts. There is no definition of the general principles of EU law. Why is that, and what does the provision mean in clause 4?
I am glad that the hon. Lady made that intervention. Clauses 2, 3 and 4 are subject to the savings and the caveats in clause 5 and schedule 1. The point about schedule 1 is not that no EU principles will apply after the date of exit, but that that date is the cut-off point for recognising EU principles as reflected in UK law. New principles that may evolve after that point do not become part of UK law; only the ones that arose before that point do. That is the clear intention schedule 1(2). I hope that that gives the hon. Lady some reassurance, but we will come on to talk about the savings in clause 5 and schedule 1 on a separate day next week, when I will be happy to return to that point if she has any outstanding concerns.
Will my hon. Friend allow me to intervene one last time?
The Minister says that we already have a number of vehicles to ensure that we give effect to our obligations under the UN convention, but does he not accept that we have had cases in this country of decisions by the courts saying that legislation that is not compatible with the convention is, none the less, not unlawful?
As I have said, we continue to keep these matters under review. If there is a court decision, we will obviously comply with it, whatever it is. I suggest that her amendment would not meaningfully or practically enhance such rights. If what she wants to do is outside the scope of this vehicle-the snapshot that we are taking of EU law and reproducing in UK law-she should make the case for further innovations. She is of course at liberty to do so, and I would expect her to do so.
Will my hon. Friend give way?
My hon. Friend makes a very good point about EU nationals. While the UK has been in deficit since 2001, the only part of the population that has been paying its own way and standing on its own two feet are EU nationals. They are in surplus to the tune of £2 billion or £3 billion. We see what happens when they start to become scarce. It is happening in Cornwall, with crops unpicked. We need these people and there should be a Government apology for the 16 months of uncertainty that they have had to go through.
My hon. Friend makes very salient points. He represents a constituency that relies on those skills and labour. If the UK Government are serious about their apparent respect for the Scottish Government's role in this process-undermined, of course, by them voting down yesterday the devolved Parliaments' legislative consent-enabling amendment 79 in the name of my hon. Friend the Member for Arfon (Hywel Williams), which Labour, with the honourable exception of the hon. Member for Ynys Mon (Albert Owen), shamefully abstained on-and want to give some integrity to their claim of respecting the role of the devolved Administrations, perhaps the Minister will provide clarity now on whether, given Scotland's different legal jurisdiction, the UK Government have discussed and consulted on clause 4 with Holyrood. This is important because the clause is about how laws will be transposed and interpreted domestically. The UK Government must recognise that Scotland has an entirely separate legal system, even if the Leader of the Opposition is not aware of the separate existence of Scots law. We support new clause 30, which was tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). It deals with important animal rights, specifically to ensure that animals continue to be recognised as sentient beings under domestic law. We will vote with her in the Lobby, should the new clause be pressed to a vote.
The hon. Gentleman is making very good points. I want to just draw two issues together. He talks about animal welfare protection and a moment ago he referred to EU nationals who work here. I am sure that he is aware that about 90% of the vets in UK abattoirs are from elsewhere in the European Union. The loss of their services massively challenges and threatens animal welfare, does it not?
I say to the hon. Member for Brighton, Pavilion (Caroline Lucas) and others, perhaps as one remainer to another, that to suggest everything EU for the environment good; everything outside-
indicated dissent.
Does my hon. Friend not agree that the action that Client Earth brought on expansion of Heathrow could not have been pursued, had the law been as the Government propose to amend it?
There are various different aspects to what right we will have to pursue court cases and judicial review once this law comes into effect. We discussed some of those when we talked about the role of the European Court of Justice, the governance gap and the fact that if breaches of the law are not enforced, monitored and measured, it can be very difficult to bring court cases as well. There is real concern about how the Government are restricting legal aid for environmental judicial review cases. Community groups really rely on this law-it is not just for groups such as Client Earth, which is well supported and has been able to take the Government to court on air pollution three times and has instigated other proceedings. There is also a real issue about what this means for local people who want to challenge the Government-we may cover that in a different debate.
We heard in the Environmental Audit Committee session with the Ministry of Justice officials that the number of cases brought since the cap on costs was removed has fallen from 16 to 11 cases a month. The change is happening before we have even left the EU.
My hon. Friend is quite right. It is about the removal of the cap on costs as well, and the fact that local people bringing these cases might find themselves liable to a huge financial burden if they are not successful. Amendment 93 removes clause 4(1)(b), which restricts rights in clause 4 to those which are“enforced, allowed and followed accordinglyâ€. Amendment 94 removes clause 4(2)(b), which excludes rights arising under EU directives that have not been adjudicated by the courts before exit day. There is no explanation as to why only rights that have been litigated on or enforced are carried over. The Minister may dispute this, but my interpretation is that the result will be that contentious aspects of law will be retained, but those that have never been litigated, perhaps because they are really obvious and incontrovertible and no one has seen the need to challenge them-the ones that everyone accepts-will be the ones at risk, which seems a little bizarre.
I have a great deal of sympathy with the hon. Lady's amendment 93. I hope she would agree that it would be helpful if the Minister responded to her amendment and the points that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) made by explaining what would be lost if paragraph (b), which is as clear as mud to many of us, were left out and paragraph (a), which is blissfully clear, were in place.
Will the hon. Lady give way?
I am about to finish my speech. Guidance is much easier to change at the whim of the Government or, indeed, the Secretary of State. The courts are much less likely to uphold guidance. There is much more deference from the courts to the authority or organisation whose decision is brought under review. It is difficult to see how guidance would enhance observance of the principles above EU standard. We do not see our domestic courts doing that at present. The Environment Secretary talks of an ambition to raise standards rather than sticking to those that we currently have, and I should be grateful for clarity in that regard. The purpose of new clause 28 is to transfer vital principles into domestic law, from the need to promote sustainable development in the UK and overseas to the “polluter paysâ€ principle and the precautionary principle. I believe that only by enshrining those principles in UK law can we give the public confidence that they will be upheld.
It is a pleasure to follow the hon. Member for Bristol East (Kerry McCarthy). Her commitment to environmental issues is beyond question, and it has been a pleasure to work with her on a range of them during the years in which I have been a Member of Parliament. It is also a huge pleasure to follow my right hon. Friends the Members for West Dorset (Sir Oliver Letwin) and for Newbury (Richard Benyon). Given that they said so much of what I wanted to say, I am now tempted simply to say, “What he said.â€ It was a joy to listen to both speeches, because they were absolutely brilliant.
With that mind, why are the Government even contemplating a free trade deal with the US, which at a stroke would undermine our welfare standards and probably put our exports with the EU at risk?
There are huge assumptions in that intervention. We could of course organise a rubbish free trade agreement with the US which involves lowering all of our standards to the lowest possible level, but that would not be acceptable to my constituents or the hon. Gentleman's, and the Government are not proposing that. The example that keeps on being given in relation to the lowering of standards is chlorination of chicken, and the Secretary of State answered that question beautifully.
What about hormones in beef?
There are many examples. I have spoken out about hormones in beef often in this House-bovine growth hormones, chlorination of chicken and the use of chemicals that we do not allow in this country, or indeed in the EU. But this will come down to the quality of the negotiations that we engage in, and it is the job of this House to ensure that the agreements we reach honour and respect the standards expected by our constituents. There is no reason to believe that we will not be able to do that. We have had absolute reassurances and some wonderful statements from the Secretary of State, and long may he avoid promotion-I hope he does not mind me saying so-because I do not want to see him move. Like the hon. Member for Brighton, Pavilion (Caroline Lucas), I do not want to see the Secretary of State bumped upstairs into a bigger job, not that he could not do it; he is doing such a good job where he is at the moment that I want him to stay there, and I have absolute confidence in him.
I applaud my hon. Friend's passion and expertise in this subject. Does he agree that the world-leading environmental body that is proposed for when we leave the EU is a great opportunity that Britain can grasp to take the lead on environmental standards?
I could not agree more with my hon. Friend. In one of his interventions, the Secretary of State said that nature by definition does not have a voice and that it is our job to give nature a voice. That is what we will do if we create an appropriate institution. I am absolutely committed, as my hon. Friend is and as many Members on both sides of the Committee are, to work together to get a world-class body to ensure that nature has a voice and that the Government can be held to account. That is what we must do and will do.
Returning to the possible trade deal with the US, the Americans have already said that a condition of doing a trade deal with the UK is that we do not sign up to the EU's animal welfare standards.
I will answer the intervention but, with respect, I do not think that that is directly relevant to the points that we are making. We will engage in talks on a free trade agreement with the United States, and there will be argy-bargy and give and take. My view and-I am so happy to say- that of the Secretary of State is that that will not involve lowering animal welfare standards or environmental standards. Another point to make is that we do not just sign up to European animal welfare standards; our standards are higher in many respects than those applied throughout the rest of the European Union. Our pig standards, for example, are higher than any other country in Europe, and that does come with problems.
Exporting cruelty.
My right hon. Friend is correct. While we apply higher standards on our own food producers, we are accepting lower quality imports from other countries, so we are exporting cruelty to those countries, which is a problem. However, there is no question about the commitment of this Government or, indeed, of any party in our politics today-our collective commitment-to maintaining high animal welfare standards. The first campaign that I engaged in, aged four, involved persuading neighbours to let their birds out of their cages, because I could not bear the idea of the cruelty. Few people here are more committed to animal welfare than I am, but I have no concerns in this area, partly because of the assurances from Government and partly because there is a consensus in this place on the issue. I cannot remember who asked me to give way, but I will not take an intervention whoever it was, which makes-
Ah, it is hard not to give way as the hon. Lady is a neighbouring Member of Parliament.
The hon. Gentleman talks about environment law and the Government's so-called commitment to the environment, but does he agree that on air quality we cannot trust a Government that refuse even to consider introducing a scrappage scheme to address nitrogen oxide and particulates? They have spent hundreds of thousands of pounds on defending the case that Client Earth brought against them.
I thank the hon. Lady for her intervention. I am a fan of Client Earth, but I am sure that many in this place are not. In fact, I was one of the people who helped to set it up when it came to this country, and I am proud of the small role that I played in ensuring that it is able to do its job. I will not defend the Government's record on clean air over the past seven years, because we could and should have done all kinds of things and today's figures are astronomical. Some 40,000 people a year are dying early as a consequence of air pollution, which is not a million miles away from the number of people who died during the smog that led to the Clean Air Act 1956. We need to bring those policies together under the umbrella of a clean air Act, which is a point that I have made many times and continue to make. However, I do not doubt the Government's commitment to tackling such issues.
I shall move on, because I will otherwise fail to address the key issues that I wish to address. Before I first gave way, I was talking about the discussions between Government Members, the Secretary of State, the Secretary of State's advisers and the Greener UK representatives. Those discussions were meaningful-in some cases they lasted a long time-and they led to a broad agreement on a solution. I am delighted to say that that is the solution the Secretary of State has presented in the past few days. The Committee has heard most of the details already, but my right hon. Friend has committed not only to creating a strong, independent body with teeth that can hold the Government and their successor Governments to account on the environment, but a policy statement-the policy statement we have already been debating-that will set out and define those key environmental principles. There is a hierarchy of national policy statements. They are not all the same, and some have sharper teeth than others. My right hon. Friend the Member for Newbury knows more about that than I do, and I invite him to intervene.
My hon. Friend is making a powerful speech. The marine policy statement that came as part of the Marine and Coastal Access Act 2009-the right hon. Member for Leeds Central will feel extremely proprietorial about this-is a good example of how Government can set policy, and of the tortuous discussions about how Government can adhere to that policy. It is a good model to take forward as part of this policy statement.
My right hon. Friend has a closer experience of this issue than I do. The solution presented by my right hon. Friend the Secretary of State reflects a consensus reached between parliamentary colleagues and between his Department and the main representatives of Greener UK, who by and large have publicly welcomed the policy. I invite Members to look through the Twitter accounts of some of this country's leading environmental campaigners and lawyers to see that, generally speaking, there is a high level of enthusiasm for the Secretary of State's promises. I agree very strongly with the sentiments behind many of the amendments that have been tabled, and to which hon. Members have already spoken. I am delighted the amendments were tabled, because they have had the effect of sharpening and focusing minds. I found them useful in my discussions with the Secretary of State, but I hope it will at least be acknowledged, particularly by Opposition Members, as it has been by the key pressure groups, that the amendments have already done their job. My right hon. Friend the Secretary of State is not in his place at the moment but, if he is listening, I put on record my very sincere thanks to him for stepping up and giving nature the voice that it so badly needs.
The hon. Member for Wells (James Heappey) mentioned consensus, and the Prime Minister said in the summer that she sought a greater degree of consensus about Brexit. I gently say to the Government that it would have been helpful if we had seen more signs of that in our debate and consideration so far. It does not help, as we heard yesterday, when a new amendment is tabled and Members who attempt to vote against it are told:“We will not tolerate attempts from any quarter to use the process of amendments to this Bill...to try to block the democratic wishes of the British peopleâ€. That does not help to create consensus. The front page of The Daily Telegraph does not help to create consensus. After all, MPs are simply seeking to do their job in scrutinising the legislation, and we would not be doing our job if we did not. I want briefly to refer to new clause 67, the precautionary principle and article 191 of the treaty. The Minister argued that the precautionary principle is carried forward in some of the EU legislation that we are bringing across. That is correct, but it is not a sufficient answer to the argument that article 191 should be included in the illustrative list that is contained in the explanatory notes. If the Government think, and they do, that article 120 of the treaty-it begins:“Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Unionâ€-contains directly effective rights that would be converted into domestic law as a result of clause 4, why on earth is article 191 missing from the illustrative list?
The European Union (Withdrawal) Bill is intended to bring existing EU legislation into UK law. As we do so, we must ensure that the fundamental rights of children are not diluted. With our exit from the EU, the UK plans no longer to be party to the EU charter of fundamental rights, so it will not automatically benefit from the protections of children's rights that exist within the EU legal framework. The treaty of Lisbon introduced an objective for the EU to promote the protection of the rights of children, and the charter of fundamental rights guarantees the protection of the rights of the child by EU institutions, as well as by EU countries when they implement EU law. The best way to ensure that those rights are maintained after Brexit is to enshrine the UN convention on the rights of the child in UK law. Although the UK is a signatory to that convention, it is not enshrined in domestic law. The Bill removes from UK law the European charter of fundamental rights, proposing that fundamental rights and principles are considered in place of that charter when implementing case law or legislation that refers to it directly after exit day. The Children's Society has rightly raised its concerns that there is no further information on what these fundamental rights would be, or any clarity about whether the development of children's rights envisaged in EU law would be considered to be fundamental rights and principles. That is why, in the absence of any clear definition, further integration of the UN convention on the rights of the child in UK law would provide the framework for these fundamental rights for children.
Thank you, Mrs Laing. I was saying that the Bill must ensure at the very least that there will be equivalent provision for environmental standards and protections, and access to justice, if the UK ends its relationship with EU institutions. What will the new body look like? The Secretary of State for the Environment, Food and Rural Affairs has announced the creation of a Commission-like body post Brexit to uphold environmental standards, but he could not say whether it would be able to issue fines or demand change when or if the Government fail to uphold environmental standards. The EU Commission can currently fine the UK when the ECJ finds that it does not uphold environmental standards. Would there be a separate Commission-like body for the devolved Administrations, who make their own laws and should be able to continue to do so? The Secretary of State told the Environmental Audit Committee that he saw distinct bodies for the devolved Administrations, so how will they be funded? What safeguards are in the Bill to provide that environmental standards will not get even worse? There are none. The Bill takes away the rights and freedoms that we currently enjoy, and once it is in force, it will be impossible to challenge an action in court. The Bill denies us our environmental rights, so I call on the UK Government not to compromise them. I ask them to work collaboratively with our devolved Governments to be ambitious, to commit to stronger environmental protection, and to support new clauses 28, 30, 60 and 67.
I thank all right hon. and hon. Members for what has been an interesting and good debate, albeit sadly too short. I am disappointed by the Minister's response to new clause 30. It is not good enough to claim that animal sentience is already covered by UK law by virtue of the Animal Welfare Act 2006 since the protocol is not even explicitly included or referred to in that Act and the word “sentienceâ€ does not appear anywhere in it. The Act applies only to companion animals-domestic pets. It does not apply to farm animals, wildlife or laboratory animals. For those reasons, I intend to press new clause 30 to a Division. On the environmental principles, the right hon. Member for West Dorset (Sir Oliver Letwin) made very interesting and exciting points. I have long called for an environment Act, but I still do not see why that has to be at the expense of getting something in this Bill. That is important, because essentially the protections need to be in law from day one of Brexit. My worry is that I do not share his optimism about how quickly we could get an environment Act through the House. I would love to think we could do it in that time, but I am not convinced we will. I shall therefore press new clause 30 to a vote.
On a point of order, Mrs Laing. We have had insufficient time for the debate, certainly to hear from me and others who wanted to speak at greater length about these very important constitutional and environmental issues.
On a point of order, Madam Deputy Speaker. I seek your guidance concerning the cancellation of the proposed new lorry holding park at Stanford West in Kent to deal with congestion from the port of Dover and Eurotunnel, which was announced in a written statement by the Secretary of State for Transport. We are told that Highways England has been tasked with finding an interim solution by March 2019-the same month that the UK is scheduled to leave the European Union. Given that the Secretary of State last month acknowledged that a no deal Brexit could turn the M20 into a lorry park, have you been given any indication that he will come to the House tomorrow to make a statement as to why, among other things, the Government have so carelessly wasted months and millions of pounds, and have singularly failed to put together a coherent plan to address port congestion at such a critical time for our trading future?
On a point of order, Madam Deputy Speaker. You may be aware that very important elections have taken place in Somaliland in recent days, towards which the UK has provided important support. But it has come to my attention that the Prime Minister, when answering a question in Prime Minister's questions earlier, interchangeably used the words Somaliland and Somalia. Obviously, they are not one and the same, and I wondered how I might be able to encourage the Prime Minister just to be clear on the matter. It is of great concern to Somalilanders, and we should be celebrating the election.
I beg to move, That the clause be read a Second time.
The measures in this group have a number of things in common, and they relate largely to the rights and freedoms that many of our citizens enjoy, without debate or discussion-they are sometimes taken for granted-but that could well be threatened if we do not get this legislative process right. Of course, the Bill was supposed to be merely a “copy and pasteâ€ piece of legislation. We were told that there were no fundamental changes in Government policy and that it was all very straightforward. The Government said, “We are leaving the European Union and becoming a freestanding United Kingdom, so we will simply cut and paste all the EU regulations and laws as they stand into UK law.â€ However, you will notice, Mrs Laing, particularly in schedule 1, that a number of things are not to be transposed. The Government have specifically chosen not to bring across the charter of fundamental rights.
When I was sitting in the hon. Gentleman's place, Labour Ministers told us that the charter would have no more influence in the United Kingdom than a copy of “The Beanoâ€-those were the words used-because it would not apply here. Does he not look forward to a time when what Labour Ministers say will bear a greater approximation to truth?
It turns out that the charter does have value, and it certainly does have effect within the UK. I will shortly give some practical examples to show how we cannot simply airbrush this part of our current legislative framework. Many citizens, companies and organisations recognise the value that the charter brings.
Is not an example of the use of the charter of fundamental rights the one given by our right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) when he referred to the case that the EU brought against the Government, in which the current Secretary of State for Exiting the European Union, as part of his argument, prayed in aid the charter. If the Secretary of State thinks that it has use, should not that same use be available to everybody else?
Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.
Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.
Absolutely. We might hear a different argument from Ministers, but traditionally the Government's argument has been, “Don't worry about the charter of fundamental rights; it doesn't have any effect, it isn't necessary and we can do without it because it is already there in British law.â€ It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained-I happen to think that it should be retained-but simply states that Her Majesty's Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.
Does my hon. Friend agree that one advantage of the new clause is that we could explore properly the impact of losing the access that the charter gives to UN conventions, for example on the rights of persons with disabilities and on the rights of the child, which currently are not fully incorporated into UK law? We will therefore lose the way in which they are currently accessible through the charter.
Indeed. We need a far more detailed analysis from Ministers of the consequences of deleting the charter of fundamental rights, which are potentially myriad and far ranging. I pay tribute to my hon. Friend for her tireless campaigning on children's rights. She has tabled several amendments in relation to the UN convention on the rights of the child, and she will know that many non-governmental organisations that campaign for children's rights, the Children's Society in particular, have several anxieties about the deletion of the charter of fundamental rights and the lack of clarity that would exist around protecting children, who are sometimes in vulnerable circumstances.
When children in the world are still subject to slave labour or trafficking, or are working as child soldiers, does my hon. Friend agree that the message being sent that the UK would simply do away with rights that we campaigned for, which led to the charter of fundamental rights, is an abhorrence? We need Ministers to come to the Dispatch Box and say that they have changed their mind.
People will have many legitimate anxieties. We cannot simply erase a provision that currently has legal effect and provides legal protections without a statement from Ministers about the effect that that could have in law.
What a choice. I will give way to the hon. Member for Stone (Sir William Cash).
One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves.
In no way would I wish to diminish the hon. Gentleman's contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.
Does my hon. Friend agree that this is about not just the application of the charter of fundamental rights in British law, but the message that we send to the rest of the world? That goes to the heart of the problem with the so-called British Bill of Rights. There are no British rights; there are universal human rights. That is the message that this Government and our continent should send to the rest of the world and to places where people do not enjoy those human rights, which should be inalienable.
My hon. Friend makes a good point. If the Bill contained a provision to copy and paste many of the charter's general rights into UK law to preserve the current arrangements, the Government would have a reasonable case to make, but there is no alternative provision. The legislation simply deletes the charter of fundamental rights.
I have two points. First, when the charter of fundamental rights was introduced, it was said that it simply restated existing rights that were elsewhere in European Union law. Secondly, the argument that if rights are not given to us by the EU, we in Britain could not somehow manage to create them ourselves is utter nonsense. We are signed up to the European convention on human rights, we have the Equality Act 2010, and we are a signatory to many UN treaties. The notion that if we somehow do not adopt new clause 16, we somehow do not have any human rights is offensive nonsense.
It might well be the case that Parliament could salvage many of the protections over time and put them on our statute, but the Bill seeks to delete the charter of fundamental rights from the point that the legislation is enacted. In other words, it would take away rights that we hope may eventually be replaced, but there are none of the guarantees that we currently enjoy by virtue of our membership of the charter.
As an old lawyer who enjoyed jurisprudence, I know that our laws and rights come from many different sources. I am an old common lawyer, so I actually do not like stuff being written down too much; I like things to develop over time. I would really need persuading about new clause 16, because it just asks for a report, which seems awfully wet.
I was trying my best to offer a hand of friendship across the Chamber and to say, “Let's meet halfway and find a way of forging a consensus.â€ If the right hon. Lady wishes, there are other amendments today that ask for the charter of fundamental rights to be kept. I will certainly be voting for those, but she obviously knows that I would like to find a way, in the spirit of compromise, of reaching a consensus. I agree that a report is only a small step in that direction-hence the drafting of new clause 16-but I am massively impressed by her strength of commitment to the protection of rights in our country.
One of the differences between the charter of fundamental rights and the European convention on human rights lies in article 8 of the charter, which relates to the protection of personal data. Is it not a particular irony that the Secretary of State for Exiting the European Union relied on precisely that provision to sue the British Government?
It is probably time to elaborate on that example, because the Secretary of State-for it is he-sued the then Home Secretary, who hon. Members will know is now Prime Minister, to challenge the Data Retention and Investigatory Powers Act 2014 as being inconsistent with EU law. The Secretary of State himself used the argument in court that the charter of fundamental rights needed to be prayed in aid in that case. By the way, he was successful at that point in time.
As a Government lawyer at the time, I was honoured to present that case on behalf of the Government. My real worry about bringing the charter of fundamental rights into English law is that it is too complicated and does not add sufficient rights. Everybody in the House is in favour of the rights in the European convention on human rights that have been incorporated into English law. We are very keen on those and want to protect human rights, but we do not feel that the charter adds sufficient rights to take us much further, and we found that in an enormous number of arguments during that court case.
I have no reason to question the hon. Lady's capabilities in court, and I am in no way saying that she was a loser in that particular case, but the charter is not complicated. The rights are simple and clear. For example, “Dignityâ€ covers the right to life and to freedom from torture, slavery, the death penalty, eugenic practices and human cloning. “Freedomsâ€ covers liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum. Other freedoms relating to “Equalityâ€ include the prohibition of all discrimination, including on the basis of disability, age and sexual orientation, and cultural, religious and linguistic diversity. “Solidarityâ€ includes the right to fair working conditions, and protection against unjustified dismissal. Other rights include “Citizen's Rightsâ€ and matters relating to “Justiceâ€. Those are simple, important rights.
I will give way to my hon. Friend the Member for York Central (Rachael Maskell)
I agree with the right hon. Member for Broxtowe (Anna Soubry) that we need more than a report; the rights should be enshrined. On article 25 and the rights of older people, does my hon. Friend agree that having limited protections for older people at a time when so many older people need, but cannot get, things such as social care means that we need to enshrine those rights?
My hon. Friend is correct. While we have powers on the statute and while rights accrue from case law and court conclusions, the charter of fundamental rights fills many of the gaps, particularly in certain circumstances.
I will give way to my right hon. Friend in a moment, because he has a great amendment relating to data, but I want to give an example about the protection of public health. The tobacco manufacturers sought to challenge the Government's introduction of plain packaging for cigarettes-of course the tobacco manufacturers hated the idea and wanted to stop it-and the Government, in defence of that legislation, prayed in aid of their case the charter of fundamental rights and its protections for public health. The courts therefore upheld the UK's plain packaging arrangements and legislation on the basis of the protections of public health rights laid out in the charter. That is a very specific example of how the charter has benefited the rights and protections of our citizens in this country.
I thank my hon. Friend for his kind reference to my amendment 151. Going back to the case brought by the now Secretary of State for Exiting the European Union, does my hon. Friend agree that, if the Secretary of State had not been able to rely on article 8, the likelihood is that he would not have won his case and that the hon. Member for Banbury (Victoria Prentis) would have won for the Government? Does that not give the lie to the suggestion that the charter has no impact?
My right hon. Friend is absolutely right. If the hon. Member for Banbury (Victoria Prentis) had won her case, would she be here today? Perhaps she would be higher on the judicial ladder.
The hon. Member for Banbury (Victoria Prentis) suggested that the charter of fundamental rights contains rights that are too complicated to be incorporated into English law. Will the hon. Member for Nottingham East (Mr Leslie) reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.
The hon. and learned Lady makes the point very well, but perhaps the hon. Member for Banbury would like to respond.
My point is not that we do not approve of the rights, nor that we thought it was not possible to make the case without the charter, but that the charter has been part of English law since the Lisbon treaty. As good, responsible lawyers, whether acting for the Government or for anybody else, of course we use whatever tools are available to us, which in recent times have included the charter. My point is that we do not need the provisions of the charter. It is true that it can be argued the charter can do one or two more tiny things, such as widening the class, making what we can get back greater and possibly widening the possibilities for claimants, but my case is that it is possible to do what we need to do to protect people's human rights within the law as we have it in this country.
I hear the hon. Lady's case that somehow the charter is not necessary, which is very much the case that Ministers have made in the past, but she has conceded that there are differences that the charter can apply. She characterises those differences as very small, but what she perceives as small or minuscule rights are not necessarily small or minuscule rights to our constituents, to members of the public or to the most vulnerable in society, who may depend on the very rights provided by the charter in crucial circumstances.
Does the hon. Gentleman find it odd that we are transposing all EU law into our own law while taking away the thing that underpins all EU law? We are taking away the fundamentals and foundations of the body of EU law. Is that not an odd way of going about things?
I agree. I find it odd that Ministers are saying that, somehow, the charter does not matter but are then saying that we must delete the charter in the Bill. They would almost die in a ditch to defend clause 5(4), which simply says:“The Charter of Fundamental Rights is not part of domestic law on or after exit day.â€If the charter is so benign and so irrelevant, why not have the report? It may be tedious to some, but the report is necessary to explain whether those rights do or do not offer protections. If the charter is so ineffectual, and if this is supposed to be a copy-and-paste exercise to transpose EU law, I do not see the argument for deleting the charter.
Has the hon. Gentleman paid attention to protocol 30? Article 1(2) states:“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.â€The whole point of the charter of fundamental rights, subject to the protocol, is that it does not apply in our national law.
I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend the Member for East Ham (Stephen Timms) will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.
Will the hon. Gentleman give way?
I want to make a little more progress, if I may, because I need to reference a number of other amendments. I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children's rights and on public health-even the protections that the Secretary of State for Exiting the European Union himself has used-are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect. Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment-other hon. Members have tabled similar amendments-to probe the Government and to find out what will be the effect of removing the Francovich protection.
The recent prosecutions of the Government under clean air laws, for example, might not have been possible if the Francovich duty were not enshrined in law. The result of the Bill, as drafted, is that, the day before Brexit, people will have the right to claim damages from the Government for the harm they suffer, but there is a danger they will not have that right the day after Brexit.
My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations-as she says, it might well include failure to comply with air quality directives-and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements. The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there. Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.
My hon. Friend is making some excellent points. His amendment on Francovich echoes my own, although mine is slightly different on time limitation. Does he agree it is unthinkable that a Government who throughout this Bill have said, “All rights and protections would be guaranteed,â€ are now seeking to remove the ability to sue the state for imperfect administration, mostly of directives, at a time when they are about to incorporate hundreds if not thousands of pieces of EU law into our UK law? They are saying, “If anything goes wrong with any of that, you've got no right to sue us in the future.â€
My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation-many Conservative Members often make that point about the size and power of the state-and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.
As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently seriousâ€, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently seriousâ€ in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?
Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection-that right to redress-from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.
My hon. Friend rightly suspects that the Government will say that removing the charter from the UK will not affect the substantive rights that individuals already benefit from in this country. Does he agree that the problem is that the Government do not go on to say what those substantive rights are? If we simply leave it to the common law, a future Parliament-it may not be this one-could determine that it is right to erode those rights. That is why it is important we stick with the charter.
We need to make sure that if we are transposing legislation, it is a true copy and paste, but that is not what has been proposed. I am not in favour necessarily of cutting off our relationship with the single market or the customs union. There are a lot of debates on the Brexit choices we have before us, but here we are dealing with a set of separate discussions about the rights that our citizens-our constituents-could have in a post-Brexit scenario, and we need a better justification in order to be convinced than that we should just throw these overboard at this stage.
I hope this will be a more helpful intervention. The hon. Gentleman is making a good point. The point about Francovich is that we will not be able to have a claim arising from a directive that we have accepted into substantive British law because we will have left the European Union, and that is simply not fair. People would have had a claim but we will have left, so someone who sought to make that claim afterwards will not be able to do so. It is right that we will not be subjected to any new directives, so people could not raise them, but it is bad to take away a right that people would have had as we had accepted the directive into substantive law. That is the point here.
Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?
I have been listening carefully to the hon. Gentleman's argument on transposing the charter of fundamental rights into British law. Is it his case that it should be transposed as a cut and paste or that it should be adapted? Article 39 talks about the right to stand for the European Parliament, article 44 talks about the right to petition the European Parliament and article 45 talks about freedom of movement, all of which would presumably no longer be relevant after we leave the EU.
I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.
I will give way one more time but I want to make sure that other Members have a right to speak today as well.
I am in violent agreement with the right hon. Member for Broxtowe (Anna Soubry) on the issue of Francovich, and I will be speaking to those points in more detail when I come to talk to my amendment. Does my hon. Friend share my concerns that certain rights in the charter such as environmental rights, consumer rights and the rights of the elderly in particular, which are not highly developed in UK case law or in any other sort of legislation, are gently being thrown out with the bathwater in this removal of the charter of fundamental rights?
That is an exceptionally important point. Our legal system is one of the finest in the world. It is a dynamic legal system and is not simply reliant on statute; it can relate to cases as they evolve. The charter of fundamental rights, which could equally be a charter within the UK law, according to this Bill, if it were transposed, could help to maintain that dynamism and the protection of rights to fill the gaps when those unforeseen circumstances arise. We do not know what issues our constituents will bring to us from one week to the next, but we may well have a constituent who has found that their rights have been deprived unfairly and who needs redress to protect them from the Government or others. In our surgeries and discussions, what will we say to our constituents in such circumstances? What will we say when they say, “But you had the opportunity to transpose and retain the protections under the charter of fundamental rightsâ€? Will we say “Oh, well, it was a very busy day. I didn't really notice what was going on in the Chamber. There were lots of complex things going on to do with Brexitâ€? This really matters. I am delighted and proud that many Members from all parties in this House are voicing their concerns and are not prepared to see these rights just swept away on a ministerial say-so.
Is the right hon. and learned Gentleman also aware of the simple rights that many of us will have used on behalf of a parent, such as the right to wheelchair accessibility at our airports? There are also rights that came up in the course of the youth justice review I did for the Government, to do with making courts child-friendly so that, for example, they do not intimidate a young woman having to relay a terrible case of sexual assault. Such rights did not exist in British law but now exist as a result of the charter. For that reason, we ought to give due respect to our European friends for giving us the charter.
I place great respect on the fact that, for all the faults I can sometimes identify, when the European Union was established its founding fathers wished it to be based on principles not only of the rule of law, but of a vision of human society of which I have no difficulty approving.
I will just make a little progress. I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.
I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and the right hon. Member for Tottenham (Mr Lammy) have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter-as a distinguished lawyer, he knows this-is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.
My right hon. and learned Friend and former pupil master is making a speech with his characteristic intellectual honesty. Nothing passes him by. In that spirit, does he agree that the charter is not really the solution to incorporating the rights that so many of us want to see incorporated, such as the new views of sexuality and children's rights? Possibly the way forward is not to vote for this new clause, but to continue to put pressure on those on the Treasury Bench to ensure that those rights are protected in a modern and suitable way for the current world.
My hon. Friend makes a good point. As has been pointed out, this new clause just asks for a report, which means it is trying to concentrate minds on an issue. In our debate last week, one point that I made on my new clause 55, which is still hanging over the Treasury Bench like the sword of Damocles, is that there may be some ways in which we can provide-even now as we leave, as a temporary measure before we can return to the issue-some greater reassurance on the protection of key rights in the fields of equality. I strongly recommend that my hon and right hon. Friends pay some attention to that, because the issue will not go away. If we do not seek to act on it, the idea of a modern Conservative party starts to fray at the edges, and I do not wish my party to gain a reputation for ignoring these key issues.
Might I use as an example very cash-strapped services, which might not naturally wish to be extending the rights and the costs of services? For example, in the aged care sector, a couple who traditionally had to be split up due to the needs of one or other of them can, under European rights, remain as a couple. We can imagine that, in a time of cash-strapped services, that sort of right might not necessarily fall into the lap of service users.
The hon. Lady makes a valid point, but it is worth bearing in mind that that is covered by the Human Rights Act and the ECHR, so let us not get too worried. We must also face up to the fact that some socio-economic rights that require levels of cost and economic policy decisions are legitimate areas in which Parliament and Government can say that, however ideal they might be, a balance must be struck. That is why I am always careful-this probably marks me out as a Conservative-about the infinite extension of rights, because thereby we dilute their importance. That is very important to bear in mind.
My right hon. and learned Friend raised the issue of the extension of rights. Is not one of the problems with the charter and its interpretation by the courts that, because it is a very general set of rights, it can be extended by courts? Unlike with the ECHR and the Human Rights Act, it is not just about declaring incompatibility, but about striking down Acts of this Parliament too. This does not get the balance right, which he accepts is very important.
That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK's so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government's behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome. Looking back over the history of the charter, I do not think that some of the fears that were expressed-that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg-have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term-the sword of Damocles moment again-the Government must think about it before the Bill has finished going through this House.
I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA's protections?
That could be a solution, but even if we do not have time to move to that and to have the necessary debate-as we highlighted in the question about the statutory instrument powers that the Government are taking to change law-some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.
The general principles of European law do not cover the principles of environmental law. That was made clear to us in terms from the Dispatch Box last week. The charter does guarantee those environmental rights. Does the right hon. and learned Gentleman agree that environmental principles are one area in which this Bill is deficient and in which our rights will be lost?
I agree that environmental law is an area that could do with the scrutiny that I have just outlined.
I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative procedure and others, which are technical, will be left over for the negative procedure?
Yes, absolutely, and that was what new clause 55 sought to achieve, although it did provide the opportunity of looking at purely technical amendments-those would be really technical, and I do not wish to burden the Committee with complete trivia.
My right hon. and learned Friend is making a typically thoughtful and deeply considered speech. On a point of clarification, would it be right to say that there are, effectively, three different categories in the charter of fundamental rights? There are those rights that, as I indicated earlier, do not make a lot of sense in transposition, such as the right to petition the European Parliament. There are those rights that are already covered by the Human Rights Act, such as the right to life and the right to property. However, there is a third category of rights, such as that in article 41, that are not covered by our own jurisprudence and legal system, and they might usefully be so in due course.
My hon. Friend is absolutely right. He has correctly analysed what the issues are and the categories of rights on which we probably ought to focus.
Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes-one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what Supreme Court judges are looking for?
If I understand my hon. Friend's question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out-the pressure will build for this-to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children's rights. We will need to debate that.
But it will create uncertainty.
No, I do not think it will create uncertainty, any more than the Human Rights Act has created uncertainty. I have to say to my hon. Friend that I do not think that that is an issue. However, as I say, I do accept that it will take time to draft and debate these things, and it is not in this current forum that we will be able to achieve that.
On the point my right hon. and learned Friend is making, I think I am in complete agreement with him. It is right for this place to consider, debate and legislate on these issues, because this is the right forum for doing that, rather than by implementing a whole slew of rights, which would then be entirely in the hands of the courts.
Is not the important point about clause 5 that any future Act of this Parliament takes supremacy, so if there is a muddle or a problem, this Parliament can sort it out definitively? I should have thought that that would deal with the interests of all parties concerned.
My right hon. Friend almost makes my case for me. He is absolutely right that, in so far as we want to depart from anything, this House, once we have left the EU, can do what it likes, and as regards anything we enact thereafter, the supremacy of EU law is entirely removed. We can do exactly what we please, except, I am afraid, in so far as we may find ourselves still locked into trying to maintain comity with the EU when the penny drops about the economic consequences of not having it. However, I will refrain from straying too far into that area. So the question is: is there some merit in keeping the right to bring a challenge using general principles of EU law? I would have thought that there is. I tried to work through in my mind the importance of this. First, we may have retained EU law that is deficient, defective or does not operate properly, or a court might be forced to conclude that it operates in a capricious or even unfair manner, or is disproportionate. At the moment, the only remedy for the court, unless it can bring in the Human Rights Act, will be to apply the law and somebody points out to a Minister that that law is working very badly.
In my right hon and learned Friend's observations about schedule 1, paragraph 3(2), is he referring to retained general principles of EU law or to new ones post Brexit? If he is talking about the retained ones, I have a great deal of sympathy with his position, whereas importing rights of challenge that rely on later developments of EU law would be quite against the principle of Brexit.
My right hon. Friend is absolutely right and we are completely of one mind on this. I am talking about retained principles-the principles that were seen to exist at the date of exit.
I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principlesâ€, “retained general principlesâ€, with similar consequential adjustments?
I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee. Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat-I shall look forward to talking to him further about this-has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.
On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.
My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments-namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is-whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law. Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.
Before my hon. Friend intervenes, let me say this to him. The big argument against EU law is that it was either created by “this foreign bodyâ€ or it was inflicted on us and we had to enact it in order to comply with our international legal obligations. In those circumstances, it is a bit odd if we start arguing that, in view of where it comes from, the possibility of, for example, knocking it on the head because it does not comply with its own general principles should be entirely abandoned.
I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.
I understand my hon. Friend's point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.
Is there not an important change once we have left the European Union in that the European Court of Justice would not accept the jurisdiction of the European Court of Human Rights because it would not accept that a higher court could intervene in any of its rulings? It therefore needed protections within its own system that within our system are provided by the European Court of Human Rights and the application of that in domestic law.
It is a genuine pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who made his case extremely well and very convincingly-it is supported by many hon. Members on both sides of Committee. I rise to speak to amendment 46, which is designed to ensure that we keep the charter of fundamental rights in EU retained law; amendment 335, which would maintain the principles of the Francovich ruling after exit day for pre-Brexit cases; amendments 285, 286 and 287, which make provision for existing arrangements to continue during a transitional period; and, finally, amendment 336, which makes provision for retaining existing principles of EU law within domestic law until the end of the transitional arrangements.
Will the hon. Gentleman give way?
I think I could probably get a few more sentences into my stride before taking an intervention, but I certainly anticipate that I will take interventions from the hon. Gentleman. The debate raises fundamental principles about the transposition of EU law and the important role of this House in holding the Government to account for their commitments. Last week, the focus of the debate was on the Government's attempt to unravel the Prime Minister's pledges on the transitional arrangements in her Florence speech, by the imposition of a defined exit day for all purposes. The Minister, the hon. Member for Esher and Walton (Dominic Raab), made a good attempt to defend the indefensible and not commit to the application of the jurisdiction of the Court of Justice of the European Union throughout the transitional period; that was not the Government's line at the time. It would have been helpful if No. 10 had said a week ago what it said this morning, namely that the Court of Justice will have jurisdiction throughout the transitional period. If that had happened, the Minister would not have been left in such a mess.
Is the hon. Gentleman about to move on to explain why Tony Blair and Lord Goldsmith fought so hard to obtain protocol 36-I think it was that one-in the Lisbon treaty, which the Conservative party opposed? At the same time as advancing the charter of fundamental rights, will he explain why we cannot pass such legislation as we wish to in this place?
I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that the hon. Member for Stone (Sir William Cash) makes is not relevant to the issue under discussion.
The charter applies only when national authorities are implementing EU law. Does the hon. Gentleman not agree that if it is retained, it risks creating a confusing inconsistency by giving citizens powerful rights to strike down some pieces of legislation, but not others? Is it not a case of doing either the whole thing, or nothing at all?
Will not the hon. Gentleman's proposals create more uncertainty and raise more questions than answers? For example, considerable reference has been made to the Union, to citizens and to the right to vote and stand in European elections, but is that not at odds with our being a non-member state on our leaving the European Union?
No. The right hon. and learned Member for Beaconsfield answered that point when it was raised by other Members. There are clearly provisions in the charter that would have to be amended to become operable-I made that point a few moments ago-but it includes fundamental rights, so the protections of our citizens will be reduced if the those rights are not carried forward. I will illuminate that point a little further.
The hon. Gentleman proposes that part of the charter should be erased and that it should undergo some kind of surgery before it is applied through UK law. Is it not right that questions of principle and policy should not be debated in relation to this Bill, the purpose of which is to provide legal certainty and continuity, but left for wider parliamentary debate and scrutiny, and indeed the wider democratic process?
I am genuinely puzzled by the hon. Lady's point because she could make it in relation to all of the several thousands of laws that are being transposed. It could relate to every other part of the Bill. We will have to go through processes of adjustment to ensure their effective operability, but the question that needs to be answered-I hope it will be answered by the Minister when he rises at the Dispatch Box-is: why, uniquely, is the charter of fundamental rights being treated differently and being removed at this stage?
My hon. Friend is making a very powerful case, and my anticipation of the Minister's speech increases minute by minute as the case is advanced. Does my hon. Friend share my puzzlement, first, that given that the Government's stated objective for the Bill was to move everything across, the one thing they have decided to leave behind is the charter; and, secondly, that Conservative Members have argued that nothing will be lost by the disappearance of the charter, yet we have already heard powerful testimony in speeches to the contrary? That testimony includes the point raised by my hon. Friend the Member for Nottingham East (Mr Leslie), when he referred to the judgment in the tobacco case, in which the charter clearly had an important impact in enabling the Government to enforce their rights in relation to their desire to have plain packaging-never mind its being the reason why the Secretary of State, in a former life, decided to call on it in trying to sue the Government. Is there not an incompatibility between the two positions?
Our rights always used to be guaranteed, and will be guaranteed once we have left, through a combination of common law and statute law. I do not understand what threat the hon. Gentleman has in mind regarding these rights, because if any threat emerged it would be struck down either by the Supreme Court or by Parliament.
I am puzzled by that point, because EU-retained law will effectively become statute law, and that will be carried forward by the application of the charter. It is not quite clear what the right hon. Gentleman is getting at.
I listened carefully to what the hon. Gentleman said about article 6 of the European convention. I think that he said it applied only in criminal cases, but having looked at the article it enforces civil rights as well. I remember from my own experience that we took it into account in immigration cases, other tribunal cases and, I think, in some applications of procedures of the House that may or may not be compatible with that right. The measure is much wider than he suggests, so I do not think he was exactly right about that.
As I understand it, it does not apply in all civil cases-only civil rights and obligations under the convention, so it is effectively a narrowing if we lose it.
The hon. Gentleman said that he did not understand the point I was making. Our rights will be guaranteed once we have left by our Supreme Court, and by common law or the application of our statute law. I cannot think of a right that he and I value that will be destroyed because we have not incorporated the charter. I think that they will be guaranteed by those ancient and tested methods.
We are talking about statute law, and about rights such as the one on which the right hon. Gentleman's friend and colleague, the Secretary of State for Exiting the European Union, relied. I think that that point is clear. Returning to the comparison of the charter with the Human Rights Act, as well as the wider class of applicants for which it provides, it allows for stronger remedies. If any national court finds that any national law is incompatible with a directly effective provision of the charter, it must disapply contravening primary legislation or quash secondary legislation. We have exercised some of the arguments around that issue, but that is much stronger than a notification of incompatibility. We should be in no doubt that losing the charter means losing rights.
Has the hon. Gentleman considered the impact in relation to alleged and actual terrorists on the question of national security and case law? Many people who would like those individuals to be deported would find that extremely difficult under the principles of the charter because of the provisions relating to the protection of family life, which have been badly abused.
In his keenness to tackle the argument, I think that the hon. Gentleman has missed the point. That has nothing to do with the charter. Let me turn to a separate but related point on schedule 1, which states:“There is no right of action in domestic lawâ€post exit“based on a failure to complyâ€with EU general principles. The schedule also prevents courts from ruling that a particular Act was “unlawfulâ€ or from quashing any action on the basis that it was not compatible with the general principles. Damages are not allowed, so general principles are rendered irrelevant, which also reduces rights. Our amendment 336 seeks to address that by retaining the existing principles of EU law regardless of whether they originated in case law, treaties, EU legislation or directives. The date on which that retention would end would be the end of a transitional period. Let me turn to our amendment 335 to schedule 1 on the Francovich rule. I shall be brief because others have tabled similar amendments, which we support, and I want to give them a full opportunity to make their case without my anticipating what they are going to say.
On a point of clarification, the hon. Gentleman said that the date on which the retention would end under the amendment would be the end of the transitional period. Did he mean that no new general principles of EU law formulated after that date would apply, or did he mean the retention would end at the end of the transitional period?
If the Prime Minister's words are to be taken at face value-we continue to operate during the transition practically as if we were still part of the membership-new principles would apply during the transitional period, although not after it had ended.
The hon. Gentleman has touched on an important point. If we are going into a transitional period retaining the architecture of EU law, or the vast majority of it for that period, to try to leave at the end of the transition and go back to the status of retained EU law on the date on which we moved into transition would be utterly unrealistic. It would have to be from the date on which we moved from transition to final departure.
I thank the right hon. and learned Gentleman, who has made the point much more effectively than I did. That is absolutely right. Briefly, Francovich raises some important issues of accountability. Surely there is oversight by Government, because I would expect them to accept that the right to damages should be available in cases where the breach of Community law took place before exit day, and indeed before the end of a transitional period, but discovery only took place afterwards. I am therefore seeking clarification from Ministers on that point, and I hope that they accept what hon. Members are seeking to do in amendments on Francovich. We are pleased to support new clauses 16, 78 and 79, as well as amendments 297, 298, 299, 8,10,101,105 and 62 and the consequential amendments 126 ,127,129,140, 141, 302 and 9-just for clarity. In conclusion, I return to amendment 46, because we need some honesty from the Government. The House has not authorised the Government to use Brexit as a vehicle to deplete human rights in this country. If the Government want to reduce rights and protections, they should say so and we can debate it. What is not acceptable is to pretend that the Bill provides for the transfer of rights and protections when it clearly does not.
The Secretary of State for Exiting the European Union has made a number of statements about the fact that if Opposition parties can identify rights that will not be covered he is willing to look at them and legislate for them. We have discussed a third category of rights-not those protected by the Human Rights Act or those that will be irrelevant because they are in the charter and will no longer apply -so is the hon. Gentleman prepared to take that at face value and work with the Government to ensure that those rights that have been identified are protected?
If the Government can identify the sources of rights covered by the charter and can explain exactly how any deficiencies or gaps left as a result of failure to transpose the charter will be identified, and if they outline what remedies they might make at a later stage, we would be happy to sit down with them and talk about that. It is absolutely clear to us that the Government should stick by their word and their claims in relation to the Bill on the need for the existing level of human rights protection to be preserved in UK law. As it stands, central to that consolidation is retaining the charter as part of the retained EU law. I hope the House will agree and I hope the House will support our amendments.
May I refer my hon. Friend to clause 5(2)? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), in his rather amazing speech which I think we all found very illuminating, said that this was a completely new principle to be applied in British law. Is it not just a translation of an existing principle in EU law into United Kingdom law for the purposes of a smooth Brexit? Is it not, in fact, less exceptional than being a member of the European Union and allowing a court in a wholly different jurisdiction to impose itself on parliamentary sovereignty?
I thank my hon. Friend for his intervention and I will come on to address very carefully the speech made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I agree that there is an inherent sense that, as we move to change, things are not going to be exactly as they were before. I want to draw a very important distinction. We are leaving the EU and taking back control over our laws and the way we make our laws, so that Members across the House can exercise proper democratic control. At the same time, the substantive law-the rules and the principles-will remain the same, because of the snapshot we are taking on exit day and retaining in UK law, thereby avoiding the putative legal cliff-edge.
Will my hon. Friend give way?
I will just make a little bit of progress and then I will give way to my right hon. and learned Friend. I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle-indeed, I think we would find it counter- productive in practice-to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.
Will the Minister give way?
I will not give way just for the moment, but I will give way to the hon. and learned Lady shortly.
Will the Minister give way?
I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments. I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn). My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of lawâ€, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments-at least as I have understood them, and I stand to be corrected-would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK's basic constitutional hierarchy that we are seeking to restore and affirm.
Allow me to make the point and then I will give way, because there are two sides to my right hon. and learned Friend's amendment. Paradoxically, with respect to the relationship between retained EU law and common law rules made up until exit day, my right hon. and learned Friend's amendment would skew the clear and certain snapshot the Bill will take, because retained EU law would no longer supersede common law rules. By removing the common law from the operation of the Bill, I am afraid the amendments would-at least on the Government's analysis-create considerable uncertainty for business and individuals alike.
No, I want these words removed because they are completely unnecessary. To use that wonderful word that lawyers like to apply, they are otiose-they add absolutely nothing to the Bill. The common law will be adjusted according to the statutory framework in which it operates, so I say with some regret-because someone clearly came up with the idea-that it seems rather poor drafting. Others, whom I consulted because I was puzzled by this, and who have spent their lives drafting precisely this sort of legislation, seem to agree with me. I was trying to help my hon. Friend, not create some devilish plot to scupper Brexit.
I am not sure where this devilish plot has come from-I have made no such suggestion; I was simply pointing out to my right hon. and learned Friend that, as my hon. Friend the Member for Harwich and North Essex, the Chair of the Public Administration and Constitutional Affairs Committee, mentioned earlier, some of the amendments run the risk of creating more, not less, uncertainty, notwithstanding their perfectly laudable and genuine aims. If my right hon. and learned Friend's amendment were passed, it would no longer be clear how common law rules would interact with a particular provision of retained EU law in the event of a conflict between the two. Across a range of issues, from animal welfare to competition law, the concern is that such an approach would create uncertainty about the legal position of citizens and businesses. I am sure that this was not his intention. I am not looking for devilish plots on either side of the House, but I do fear that that would be the practical reality.
On the subject of devilish plots and “The Screwtape Lettersâ€, may I refer my hon. Friend to chapter 12 of Lord Bingham's magisterial work, “The Rule of Law and the Sovereignty of Parliament?â€? In this context, its reference to the rule of law is highly relevant, simply because it refers, indirectly or directly, to the issue of the constitutional supremacy of law making and the construction placed upon it by the courts themselves. On that issue, the rule of law does, I think, have considerable salience.
My hon. Friend makes a considered and thoughtful point. Given the changes we are making-for the purposes of greater certainty and clarity-I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point. I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:“The United Kingdom will cease to be a member of the European Union on the 29th March 2019â€. I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.
The hon. Gentleman said earlier that one of his guiding principles was not to exacerbate any legal uncertainty, but the Exiting the European Union Committee has heard evidence from a senior lawyer that the body of retained law will contain instruments that make explicit reference to the charter. If the charter is not part of retained EU law, how are the courts supposed to interpret the body of retained law that refers to it?
The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing subsections (4) and (5) of Clause 5. I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country's record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.
My hon. Friend reassures us that even without the charter of fundamental rights the House of Commons can be relied upon. That was the argument when the Lisbon treaty was being ratified. There was a widespread feeling that it was not clear whether it would add anything, but we now see that it has added quite a lot, particularly around privacy law, on which the House had never done anything, and now data protection. The lobbies brought to bear on the House if ever we look at privacy by sections of the media and so on are very considerable. Why are we getting rid of a convention that has done no harm and actually has run ahead of this House of Commons at various stages? What will be gained by not leaving open that opportunity for the future?
Will that report arrive before the Bill's Report stage?
Yes, it will, and, as I was about to say, there will indeed be a Report stage. If my right hon. Friend, or any other Member, feels that our analysis is deficient, or that we have missed out a substantive right that risks being removed if the charter is not retained, once the memorandum has been considered I will be happy to sit down with my right hon. Friend-and any other Members-and discuss the issue again.
This has been a long and complex legal argument, but let me summarise it. The issue of data protection is vital to many of my constituents, especially young people online, but it is also vital to our tech and financial services sectors. Can my hon. Friend assure me that there will be no risk of a legal challenge in relation to data protection because of the way in which these provisions are being brought into British law?
I know that my hon. Friend is an expert on these matters because of her time in the European Parliament. I shall be addressing data protection directly, but I shall be happy to give way to her again in due course. The other argument that has been made about the charter is “If it does nothing wrong or does nothing by itself, where is the harm in keeping it?â€ However, as was pointed out by my right hon. and learned Friend the Member for Rushcliffe, the charter applies to member states only when they are acting within the scope of EU law. Indeed, it is a specific device intended to codify-not create-rights, and apply them to EU member states and other EU institutions operating within the framework of EU law. It would be curious, if not perverse, to incorporate that instrument directly in UK law, or implement it, at the very moment when we ceased to have the relevant obligations as a member of the EU.
Will the Minister give way?
I will make a slight bit of progress, and then I will give way. Seeking simply to transplant the charter into our domestic law as it stands, dislocated from EU membership -given all the other points that Members have made about the way in which it would apply in practice-would not be appropriate, and, indeed, could introduce needless complexities that all of us, on both sides of the House, should legitimately seek to avoid.
My hon. Friend has addressed my question, but, with great respect, he has failed to give an answer. It is true that the charter was originally proposed as a statement of European values to which all members of the European Union could adhere, but, as we have heard, it has developed. If it is doing no harm, why are the Government going to such lengths to get rid of it as the one specific change in the Bill? Presumably it is because it contains the words “Europeanâ€ and “rightsâ€, and this was intended as a Daily Telegraph gesture to the hard right wing of my party.
My right hon. and learned Friend's intervention was not in quite the spirit in which we have conducted our proceedings so far, but I shall try to address his underlying concern, and I shall be happy to take another intervention from him shortly if he thinks that I have still not addressed it. He is a demanding customer, but I shall keep on trying.
Will my hon. Friend give way?
I am going to make a bit of progress, but I will give way shortly. Let me, again, be clear about what the Bill does. It takes a snapshot of substantive EU law, including the underlying fundamental rights and principles at the point of exit. It converts those into UK law, where they will sit alongside the Human Rights Act and other UK legislation on human rights. That is a crucial point. As my right hon. and learned Friend the Member for Beaconsfield rather perceptively asked during debates on the Lisbon Treaty in 2008,“Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European Convention on Human Rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights?â€- During the same debate, my right hon. and learned Friend made the point, far better than I can-and I say this with all due deference-that the risk of adopting the charter was that it would, at least potentially, run into conflict with domestic human rights law, thereby creating at least the potential for legal confusion. This is the point that I want to make to my right hon. and learned Friend the Member for Rushcliffe. If we incorporated or implemented the charter, we would in effect be triplicating human rights standards in UK law, opening up wide scope for uncertainty. My right hon. and learned Friend the Member for Beaconsfield was right about that then, and I think he is right about it now.
With all due respect, I do not understand the point that the Minister is making. The charter is already part of UK law, because we are a member of the European Union.
As we leave the European Union, it will make no sense to retain the institutional framework of membership. What we will do is retain, in the way that I have described very carefully, the substantive rights that were codified in the charter. If, when we publish the memorandum, the hon. and learned Lady, or any Member on either side of the House, thinks that there is a gaping gap, we will be able to address that.
Will the Minister confirm that the evolution of our rights through history shows that the best way in which they are created and defended is through the democratic instincts of the British people, and that they then trust this Parliament to make sure that those rights are fully entrenched? As the Minister has assured those rights, I really do not see what the problem is. What is the threat to those rights? We have a free Parliament representing a free people.
I suppose the theory is that a majoritarian dominance-a Government with a huge majority-would trample on rights and rattle legislation through the House of Commons, as the last Labour Government did with identity cards and proposals for 90 days' detention without charge. We saw most of that off.
Will the Minister give way?
I want to make a little bit of progress, but I will of course give way to the Chair of the Select Committee.
I am grateful to the Minister. He said a moment ago that one of the arguments he was advancing for not incorporating the charter was that it might then come into conflict with our own human rights law. Given that, as we heard from the hon. and learned Member for Edinburgh South West (Joanna Cherry), it has been part of our law for some time, can he give the Committee one single example of that happening?
I think that the right hon. Gentleman should look at, for example, the Devine case on prisoner voting. It is very unclear how the case law in the Luxembourg and Strasbourg Courts meshes together. It is possible to argue in favour of one or the other, but they are not entirely consistent or compatible. When giving evidence to a House of Lords Committee in 2015, my right hon. and learned Friend the Member for Beaconsfield defended the Strasbourg Court very validly by contrasting it with the “predatoryâ€ habits of the European Court of Justice in Luxembourg. I think that even those who have been the most enthusiastic human rights defenders, and those on the remain side of the argument, will recognise the clash and the inconsistency between those jurisprudences.
I am not going to give way again. The point I wanted to reaffirm is that, given that the substantive rights codified by the charter will be retained in EU law, it does not make sense to incorporate the EU charter itself, an element of the EU's institutional architecture designed to regulate EU membership, at precisely the moment when we are leaving.
Does my hon. Friend accept that there may be a third category of rights that are in the charter but are not in the Human Rights Act, and require protection, and that the source of those rights cannot be identified other than in the charter? If so, will he accept the suggestion made by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that there should be an Act of some sort to deal with them?
As I have made clear, we will publish a memorandum containing article-by-article analysis of the charter and how the substantive underpinning rights at the point at which it is codified can be reflected in UK law. I am happy to continue the dialogue with my right hon. and learned Friend the Member for Beaconsfield and my right hon. Friend the Member for West Dorset if they believe that any rights have been missed out. I think that this is probably the right moment to deal with amendment 151, which was tabled by the right hon. Member for East Ham (Stephen Timms), and which relates to the protection of personal data.
Will the Minister give way?
I am going to make a bit more progress, but I will give way shortly. The amendment relates to privacy and protections, an issue that has been mentioned by a number of Members on both sides of the Committee. I suggest to the right hon. Gentleman, respectfully and humbly, that the amendment is not necessary. It is not required because the Data Protection Bill will set high standards for protecting personal data, linked to the general data protection regulation. We will continue to maintain the highest standards of data protection after we leave the European Union. The Bill will also preserve in domestic law existing EU fundamental rights, including data protection rights and underlying case law, which were already part of EU law before the charter came into force. Individuals in the UK will continue to have access to well-established domestic and international mechanisms to bring their cases and obtain appropriate remedies, whether in Strasbourg or under the Human Rights Act, when they consider that their rights have been breached. That includes the right to seek a judicial remedy against data controllers or processers.
I thank the Minister for his words on the Data Protection Bill, which will give strong data protection in the UK. However, my understanding of general data protection regulation in Europe is that it is based on the fundamental principle that people own their own data, whereas the Data Protection Bill does not, as we have drafted it here, start with that fundamental principle. So we either need to amend that Bill or still recognise that principle in order for them to be equivalent; that is what we need to aim for if we want to achieve equivalence.
I thank my hon. Friend; she has made her point in a very careful way. I suggest that that is something for the passage of the Data Protection Bill in due course, if she feels there are gaps in it, and if, after having looked at the memorandum we are publishing, she is not persuaded that we will be reflecting in UK law after exit all the rights.
I am grateful to the Minister for addressing my amendment. Does he accept that it is essential that we avoid a declaration from the European Commission at some point in the future that data protection arrangements in the UK are not adequate, and we must therefore secure an adequacy determination? Does he also accept that not having article 8 somewhere on the UK statute book is an invitation to those elsewhere to find against us when that crunch decision comes?
The right hon. Gentleman is absolutely right that we need to be very careful to navigate our post-Brexit period in a way that minimises litigation. I cannot see that such litigation would be good for the UK and its taxpayers, and it is not good for sustaining a healthy relationship with our EU partners. We do, of course, have article 8 in the ECHR, which is directly incorporated via the Human Rights Act, but, as I have said, if the right hon. Gentleman feels that any elements of it are not properly transposed into UK law when we publish the memorandum, the correct place for that to be considered will be the Data Protection Bill. The wider point is that the removal of the charter from UK law will not affect-
I give way to my right hon. and learned Friend.
Is my hon. Friend about to move on to schedule 1, or is another Minister going to deal with it, and at what stage of this afternoon's debate? I thought the Government would wrap this all up in one, seeing as it is a single debate.
As I said at the opening of my remarks, given the intention to address clause 5 in some detail and all the underlying amendments, we have split this up and the Solicitor General will address schedule 1 and all my right hon. and learned Friend's concerns around Francovich and general principles in due course. I hope I have tackled hon. Members' concerns, at least in relation to clause 5 and the charter, and I urge hon. Members not to press their amendments to a vote. This Government and the ministerial team have listened, and we will continue to reflect carefully on all the arguments made today. Equally, the Government believe the exceptions to retained EU law contained in clause 5 are right as we carefully seek to separate our legal system from that of the EU, restore democratic control to this House, and do so in a way that leaves more, not less, legal certainty. I urge hon. Members to withdraw their amendments and to pass clause 5 unamended.
I think I have already said this, but I am very happy to reaffirm for the hon. and learned Lady that the Government have no plans to withdraw from the ECHR, or to revise or repeal the Human Rights Act.
I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This would be precisely at the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.
With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.
Does the hon. and learned Lady agree that there is some kind of misunderstanding here, and that it is the gaps that we are addressing? We are not creating uncertainties. The situation proposed by the Bill will create gaps, and that is the main problem that we are addressing.
The hon. Lady makes her point eloquently. Some of those on the Government Benches say that incorporating the charter into domestic law would cause uncertainty and chaos, but our point is that not incorporating it while we are incorporating everything else at the point of the snapshot is what will cause uncertainty. I do not know whether I would go so far as to call it chaos. After all, there is going to be so much chaos around after Brexit, and a difficulty in establishing the difference between fundamental rights and general principles might not be the biggest example of that chaos. However, there will be legal uncertainty. The Minister himself said that one of the Government's guiding purposes in the legislation was to avoid legal uncertainty.
Our independent judiciary is clearly quite capable of balancing the rights contained in the charter, the Human Rights Act and other pieces of domestic legislation, and it has done so successfully for many years.
Indeed it has; that is its job. In particular, judges at the higher level such as the Supreme Court and the High Court of Judiciary in Scotland are used to grappling with the complex interplay of international treaties and international human rights protections. I mentioned earlier that the Exiting the European Union Committee had heard evidence from a variety of witnesses about the effect of not incorporating the charter. I have to be honest and say that some of them were happy for the charter not to be incorporated, but even they said that something would be lost by its going. Hon. Members on both sides of the House have given a number of examples of what would be lost, and I would like briefly to add to that list.
Just before the hon. and learned Lady comes to her list, may I add one more item to it? The Government have made great play of their commitment to the Good Friday agreement-the Belfast agreement-and stated that they are going to uphold all their obligations under it. One of those obligations relates to respect for human rights; indeed, that element has quite a large chapter in the agreement. Part of that obligation involves having, at the very least, an equivalence between human rights protections in Northern Ireland and in the Republic of Ireland. It is obvious that when the UK leaves the European Union, Northern Ireland will not have the protections afforded by the charter that we are discussing, but that the Republic of Ireland will. I hope that the hon. and learned Lady will therefore press the Government to fill that gap in Northern Ireland's protection of fundamental rights.
Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter's protections. This could pose significant problems for the Good Friday agreement- The Solicitor General is shaking his head-
I am listening with great care to the hon. and learned Lady's remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.
I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on 5 December, because with all due respect, a list prepared by a Minister does not have the same weight in a court of law as a codification that has been signed up to by a number of countries. It is not just my view and that of the hon. Member for North Down (Lady Hermon) that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government's approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.â€ This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.
I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.
The hon. and learned Lady and I both sit on that Committee. I would like her views on another point made by Dr O'Brien, which was that the school of thought that says that excluding the charter might not make that much difference is misleading because of the extent to which it is embedded in a lot of what we would consider to be retained EU law, and disentangling that would be extremely complicated.
Dr O'Brien did indeed make that point, and I think that anyone interested in the detail of why removing the charter from domestic law would take away rights would be well advised to read her evidence.
The number of cases in which the charter is cited- 248 in England and Wales-does not mean that it has had the slightest practical effect on the outcome of judgments, as the hon. and learned Lady knows quite well.
I do know that, because I have sat through cases-so, too, has the hon. and learned Gentleman, I suspect-in which case law has been cited and it is hard to see its relevance. However, Dr O'Brien made her point advisedly, having taken care to prepare for the Select Committee hearing, so it is not an isolated point-as the hon. Member for Feltham and Heston (Seema Malhotra) has indicated, there was quite a bit more to her evidence. She touched in some detail on data protection issues, but I will leave it to other Members to discuss those, because the right hon. Member for East Ham (Stephen Timms) had a very interesting exchange with her on these issues and will no doubt address them later, because he has tabled an amendment.
The most familiar rejoinder of a judge when one cites the charter in the High Court is, “What does it add?â€ The most familiar response of counsel is, “Nothing.â€ The most familiar course of the judge thereafter is to ignore it completely, in 95% to 99% of cases.
The hon. and learned Gentleman is no doubt commenting on the English jurisdiction, and I cannot comment on that because I have not appeared here, except in the UK Supreme Court. But certainly in Scotland it is sometimes referred to, and sometimes it is relevant and sometimes it is not, but that applies to all references made in cases. However, to counter his point, there are hard examples of where the charter has made a huge difference. The right hon. and learned Member for Beaconsfield referred earlier to the Benkharbouche case, which concerned the rights of an employee in an embassy in London, and another against the embassy of the Republic of Sudan. The individual complained of unlawful discrimination and a breach of working time regulations, and she would have been denied remedy had it not been for the charter. One may forget Dr O'Brien's evidence about the number of references if one wants to, but look at the hard examples of where the charter has made a difference. We have also heard about the tobacco packaging legislation. There are many examples relating to data protection, perhaps the most celebrated one being the litigation of the Secretary of State for Exiting the European Union.
I hope that the hon. and learned Lady can help me with a point of confusion that I am struggling with-I hope that I do not embarrass myself in front of more learned Members of the House. Is it not right to say that the application of charter rights in the European Court of Justice creates case law that, under this Bill, we are saying has UK Supreme Court-level status, so in effect are we not copying across ECJ case law on the charter into UK common law while not copying across the charter, and is not that nonsensical?
The hon. Gentleman is absolutely right, and that point was also made by Dr O'Brien in her evidence. If, in the snapshot of retained EU law that will be taken on exit day, we are taking across all sorts of aspects of EU law that refer to the charter, it is nonsensical not to take the charter across as well, particularly if the Government insist on sticking to what they say in the explanatory notes, which is that the charter does not really add anything that is not already in the general principles. What it does add is clarity. The process of leaving the European Union is already extremely complex and unpredictable, and the removal of the charter of fundamental rights simply risks creating an additional level of legal uncertainty and instability. So why do it? Why not reconsider? The Government have bigger issues on their plate, such as the Prime Minister's spokesperson's admission this morning that we will be in the European Court of Justice for another two years after exit day, which as I said earlier renders a lot of what we are discussing this afternoon somewhat irrelevant-at least in the short term. The Government have bigger fish to fry, so why remove the charter? Why take away from ordinary British citizens and businesspeople the right to sue to enforce their rights and to realise damages if their rights have been breached? Why do that unless it is part of a wider agenda-one bigger than Brexit-that is about rolling the United Kingdom back from its adherence to international human rights norms? The Government need to think carefully about the message they are sending out.
As I have already suggested, both Tony Blair and Lord Goldsmith strongly resisted the charter of fundamental rights being made part of UK law, as made clear by my European Scrutiny Committee in its report of April 2014, which anyone can read, so it is impossible to understand why the Labour party has now taken retaining the charter as its position-although as someone said to Alice said in “Through the Looking Glassâ€:“I've believed as many as six impossible things before breakfast.â€The Conservative party categorically ruled out bringing the charter into UK law in our manifesto, and we also voted against the Lisbon treaty. That included the charter, which the European Court of Justice has since ruled did apply to us, because it includes the application of EU law as applied by the European Court of Justice, including assertions of constitutional supremacy over our Acts of Parliament and the vicarious power to disapply those Acts. An example of that-I mentioned this in my exchange with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)-is the striking down by the House of Lords of the Merchant Shipping Act 1988 in the Factortame case. For all those reasons, it would be unconscionable to include the charter in this Bill. With great respect to those who have tabled amendments, the European Court of Justice's interpretation and the case law, which is so greatly liable to EU jurisprudential elasticity by the Court itself, would thereby enable the UK Supreme Court to disapply Acts of Parliament. That is absolutely fundamental, and it would also be completely undemocratic. It has already happened under the present aegis in the case of the 1988 Act, but it would happen more and more frequently, and we would simply have to accept it, because it is not a question of opinion; it is a question of law and of fact.
It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?
My hon. Friend is making some excellent points about parliamentary sovereignty, but I am not sure the point has yet been made that there has been a cosy consensus in this debate so far that everything about European human rights is wonderful and that we want to transfer those European human rights into our own law. Actually, many of us think that the advancement of European so-called human rights has been to the detriment of the rights of other people, particularly religious people, to find their own space, because European equality laws trump all other laws. When we regain parliamentary sovereignty, in this House and through our democracy, we can start asserting real human rights.
I agree with my hon. Friend's general proposition, to which I would add that it is up to us to make our own laws. We can listen to the arguments, we can make the amendments and we can recognise human rights, as well as all the other things, as I did with the International Development (Gender Equality) Act 2014. I entirely agree with his sentiment for that reason. Lord Bingham went on to say:“We live in a society dedicated to the rule of lawâ€-I note the reference to that by my right hon. and learned Friend the Member for Beaconsfield-“in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.â€I ought to add that, in fact, Lady Hale revisited that territory, before she was made President of the Supreme Court, in a speech in Kuala Lumpur on 9 November 2016. The Conservative party opposed Lisbon, which conferred treaty status on the charter. I say this to my right hon. and learned Friend the Member for Beaconsfield with all respect, because we get on pretty well and we have had several chats over the past few days, but I trust he will recall his opposition to the Lisbon treaty and, therefore, to the charter when he was shadow Attorney General-he followed me in that post. More specifically, I hope he will recall the evidence he gave to the European Union Committee of the House of Lords, which was cited in its report published on 9 May 2016-
I know my right hon. and learned friend knows what I am about to say, but may I finish the quotation? He said that“the European Court of Human Rights is a very benign institution, whereas I happen to think that the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practicesâ€. I would suggest that those are in respect of the question of disapplication of Acts of Parliament.
May I gently say to my hon. Friend that although this is fascinating, we are actually talking about retained EU law which will not be subject to the jurisdiction of the Court of Justice of the European Union? I do have criticisms of the CJEU and the way it has operated at times, and I have had the pleasure, or misfortune, of appearing before it. Its teleological principles and its purposive interpretation of law have often been challenging in our national setting, although it is not a pariah court and by international standards it is a pretty good tribunal. So I stand by the points I made on that occasion, but they in no way diminish or undermine anything that I have said here this afternoon.
I simply add that I understand this with reference to the European Court in its existing situation, because not until we leave the EU are we able to avoid the jurisdiction of the European Court, so that applies at least for the next two years and probably for the two after that. God knows what they will do in the meantime. My European Scrutiny Committee has been holding meetings already on the European laws that have been proposed since the general election, but the problem is-
Will the hon. Gentleman give way?
As I said, the drafting of amendments is quite a complex matter, and I am the first to accept that an amendment may not meet the exact needs of the Government, even if the Government were to seek to accept it. None the less, the position is very simple and I can only repeat it: amendment 10 will be put to the vote unless the Government give some satisfactory assurances that they will respond to it.
Let me conclude. I do hope that my right hon. and learned Friend will not do what he has just suggested. I say that because those measures are defective not only in the way that he has described, but in respect of paragraph 5 of schedule 1. Amendment 10 refers to paragraphs 1 to 3, but there are also difficulties in relation to paragraph 5, which I will not go into now because I have made all my remarks. I sincerely urge my right hon. and learned Friend to listen to the arguments and to accept the fact that, for very good reasons, it would not be appropriate to press these amendments to a vote.
I was just listening to what the right hon. Gentleman said about the court cases. Would it not be the case, if we did not have the charter of fundamental rights and article 8, that all those cases would simply cite the other pieces of legislation he mentioned-the general data protection regulation and the Bill we are currently passing through Parliament? I do not really see the problem he is trying to fix.
Does my right hon. Friend recognise that if the European Commission makes a decision on equivalence, that recommendation has to go to a committee of information commissioners from the 27 EU member states, and it is for them to decide whether there is equivalence? As the Institute for Government says, when making their decision, they will check whether data adequacy is met by considering respect for fundamental rights and a scope for judicial redress. Both redress and respect are mentioned in the EU charter of fundamental rights, are they not?
My right hon. Friend is making a very powerful case. The Select Committee heard evidence from the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe, who said that the Government would seek a data adequacy agreement. Like him, I would welcome that, but it is not entirely clear whether that can be achieved, should there be a deal. I had always understood the data adequacy decision to be a regulatory decision of the Commission in respect of a third country, as my right hon. Friend has made clear in his previous remarks. Therefore, if there is no agreement or it is not legally possible to override the decision with an agreement, all the points that he has made-that the Commission has to decide, and that the decision is subject to legal challenge and could go to the Court or to other member states-merely demonstrate how much is at stake when it comes to getting this right.
I absolutely agree with my right hon. Friend. My understanding is that the shortest period in which a data adequacy agreement has ever been achieved is 12 months, in the case of Japan. Very often, these things take a good deal longer. By exactly the same token, and precisely because it may be a source of satisfaction to Home Office Ministers, excluding article 8 will constitute an invitation to the European Commission and the European Parliament to find fault with UK data privacy regulation. The cases brought by the right hon. Member for Haltemprice and Howden and others would not have succeeded if they had not been able to rely on article 8. Those who look at these matters on behalf of the European Union will have no doubt in their minds, as far as I can see, that that is the case.
My right hon. Friend is making an excellent case on a very complicated set of issues. Does he agree that the conclusion we should draw from the points he has made and from the observation I am about to make, which is that this has so far been a very lawyerly discussion, is that this will end up being a highly political decision? Whatever the rights and wrongs as expressed by the lawyers today, we are politicians who face a political set of choices, and we are absolutely offering those who do not have our best interests at heart the opportunity to frustrate us in future. It is a very risky endeavour, and it would be much easier to keep the charter.
My hon. Friend is absolutely right. This is such an invitation, and it is a terrible risk to take. Frankly, I think it is playing fast and loose with a very important part of the UK economy. Let me finish by quoting the industry body representing this part of the UK economy, techUK, which is very deeply concerned about this issue and supports amendment 151. It makes the point that“the Government must do all it can to ensure that we are in the best possible position to secure adequacy, and this includes making clear, at every opportunity, that the UK's data protection framework is equivalent to the one we have operated as an EU Member State.â€Leaving article 8 off the statute book seriously imperils the future achievement of such an adequacy determination. We will of course argue that our arrangements are adequate, but for data exchanges with EU countries, it will not be our call; it will be their call. They will make the decision: the call will be made by officials and politicians in the European Union and by the European Court of Justice. It is running too great a risk for our digital economy-at 10% of GDP, it is proportionately the biggest digital economy anywhere in the G20-and I urge the Committee not to run that risk or to play fast and loose with the UK economy, but to accept amendment 151.
May I just challenge one point? If the right hon. Gentleman looks at the Data Protection Bill currently being debated in the other place, he will see that it does not say that everybody has the right to have their personal data protected. It does not set the right in the terms set out in the article. From a European perspective, and from an Appeal Court perspective, that is potentially a problem.
Does this debate not show how technical this is and how good it is-I know people get a bit agitated about lawyers-to have so many lawyers, especially constitutional lawyers, on these Benches? Actually, most people are keen to get the Bill right on a constitutional level, and the more we can debate it, thrash it around, get it sorted and reach sensible compromises, the better it will be for the Bill, for Parliament and for this whole Brexit business, because it will stop some of this division and bring us all together.
The Business, Energy and Industrial Strategy Committee heard some very interesting evidence today from representatives of the aerospace and airline manufacturing sectors. They said, “We want identical regulations for the safety of passengers. It is vital to the industry for our regulations to be exactly matched with those of Europe.â€ There will be some areas in which we shall need regulatory matching.
I agree: I do not think the Commission will be churlish or needlessly spiteful. But the problem is that if we do not have a clear right in law that everyone's personal data will be protected-if article 8 is not there any longer, we will not-that is an invitation to the Commission to find against us. My point is that we should not be taking that risk.
Does my hon. Friend agree that a different amendment-perhaps a Government amendment on Report-could achieve the same purpose by restricting that part of schedule 1 to dealing with non-retained general principles of law, so that retained principles could form the basis for a right of action?
Yes, my right hon. Friend made that fair point in an earlier intervention. I am happy to say that I am open and willing to hear what the Government have to say on that, and I look forward to the Minister's contribution later. The concept of amendment 10 sounds reasonable to me-not least if we are to get rid of the charter-and I shall be listening carefully. However, I agree that the charter has significantly added to the complexity of human rights applications and that in removing the charter the Bill will provide an opportunity to simplify things outside the EU. The Minister has promised to deliver to the Exiting the European Union Committee a memorandum on charter rights, and I note the idea provided by new clause 16, tabled by the hon. Member for Nottingham East (Mr Leslie), of a report to review the implications of removal of the charter. I would happily accept Ministers' assurance on that, rather than to legislate for it, and I hope that the document to be delivered to the Committee by 5 December will cover the two issues, as I think the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), said earlier. My underlying acceptance of the Bill's position is premised on there remaining, as now exists, a significant and meaningful body of human rights legislation in this country. That would include common law and the Human Rights Act and would be underpinned by the European convention on human rights. I am therefore pleased that the Minister took the opportunity to accept the need for retention of the ECHR in the post-Brexit period.
I rise to discuss new clause 78 and the amendments that are designed to retain the charter. I listened carefully to what the Minister said earlier, but if the Government are not inclined to retain the whole charter, I urge him at least to look again at new clause 78, because it would protect some equality rights. Conservative Members like to argue that, when Britain decided to join the European Economic Community in 1975, what the British people voted for was an economic union-no less, no more-and that only afterwards the EU became a political union that we should now leave. However, if one looks at the fundamental role played by the British in drafting the European convention on human rights in 1950, this is not true. The convention aimed to protect fundamental freedoms for all Europeans and was driven by British values.
The hon. Lady rightly speaks of our living in a global environment, but she will acknowledge that, as has been said by Members on both sides of the House, Britain leads the way in laws for equality? Therefore, what is her concern, particularly as the Human Rights Act 1998 will remain operative?
I thank the hon. Gentleman for making that point. Legal experts the Select Committee has listened to have made the point that there are gaps, so what is the point of not taking the charter into our retained EU law as a whole, because we are taking everything else, and making sure these gaps do not exist?
Does the hon. Lady agree that it is hard to substantiate the claim that Britain leads the world in equality rights, given that we have so often had to fall back on the charter to fill gaps in our equality laws, as, for example, in the Walker case before the Supreme Court in the summer?
The hon. and learned Lady makes a good point. I am proud of the British legacy of fundamental rights, but as is clear, and as seems to be stated in a lot of legal cases-as I say, I am not a legal expert-lawyers are using different kinds of law because different laws apply to different cases. That is why we have this charter and we would lose a fundamental protection if we did not have it.
I do not wish to criticise the UK Government, because in many ways and instances they do lead the way in signing up to the UN conventions. As Ministers made clear last week, in terms of international law the UK adopts a dual system. So it is all well and good for the UK Government to sign and ratify UN conventions and treaties, but they do not actually become part of our domestic law unless there is an implementing Act of Parliament, because of the principle of parliamentary sovereignty. So we send out a signal that we lead the way but in terms of enforceable rights the hon. Lady is quite right: rights for the children are not enforceable before our courts.
What exactly would the new clause add to the rights that already exist under article 14 of the European convention on human rights?
The new clause has been promoted by the Equality and Human Rights Commission. I take it that the commission has done careful research into how it would provide an extra guarantee that is not currently provided. The hon. and learned Gentleman should look at it carefully to understand how it is meant to work, but it is an overarching tool that, as I understand it, we currently do not have. As I said before, as a non- legal person, for me the most important thing is the safe- guarding of our equality laws and the need to match what has been done so far at European and international level. Brexit is increasingly nothing to do with what leave politicians promised to the people. I fear it is becoming an ideologically driven process to turn this country into some sort of deregulated free-for-all, in which the progress we have made over the past four decades to protect individuals from exploitation and discrimination, in tandem with our European neighbours, is sacrificed on the altar of sovereignty. The British people did not vote to give away their fundamental rights and protections. If Parliament does not amend the Bill, let nobody claim that this is the will of the people.
I apologise for my brief absence from the Chamber during the debate-it was because of the excitement of a Delegated Legislation Committee. I wish to say a few words about why I feel unable to support the proposals to bring the charter of fundamental rights into UK law, but before I do so I acknowledge the huge importance we should all place on the scrutiny of this historic piece of legislation. The Bill is of course a critical part of the implementation of the huge decision made by the people of the United Kingdom in the referendum last year, and it obviously has a crucial role to play if we are to avoid a regulatory gap in relation to aspects of our law that are currently covered by EU legislation. Although I do not feel able to agree with the new clauses and amendments we are debating, I fully respect the intentions of those who have tabled them. At a time of great change for this country, it is important that we find ways to work across party divides to come together to make a success of the process of implementing the referendum result and leaving the European Union. My goal for a successful outcome is a new partnership with our European neighbours, with which I hope those on both the leave and remain sides of the debate can be comfortable. It will, of course, be important for Ministers to listen to a spectrum of views before the final terms of our departure from the EU are settled, and I know they are strongly committed to doing that.
I am grateful to my right hon. Friend for giving way. We are told by the Treasury Front Bench that these are existing rights which apply now, and that they are rooted in legislation from before the European Court. Given that those are rights that are applied now, why does she not wish to protect them and ensure that they continue?
That was certainly the stated intention when the charter was originally drafted, but the judicial activism of the ECJ has seen the scope of the charter expanded. Essentially, what we are talking about is the division of power between our courts and our legislature. I do not believe that we have the national consensus to deliver such a significant change to our constitution as to enable our domestic courts to strike down our laws.
My right hon. Friend talks about the expansion of the charter through the role of the ECJ. Can she give us an example where it has actually been the charter that has caused that expansion? In reality it is the European convention on human rights rather than the charter of fundamental rights that has tended to lead to an expansion.
Of course, the key expansion as far as the United Kingdom is concerned was the confirmation by the European Court of Justice in the Åklagaren v. Hans Åkerberg Fransson case that the charter did actually apply to the United Kingdom and that the opt-out that was supposedly obtained by Tony Blair was not valid. That brings me to my final reason for scepticism about the charter and the amendments. I was an MEP during the period when the charter was drafted in the EU constitutional convention with a view to inserting it in the abortive EU constitution.
As a former and, I have to say, very distinguished Secretary of State for Northern Ireland, who did a really good job in that office-I mean that most sincerely, although I rarely have the opportunity to say it-the right hon. Lady will know that the UK withdrawing from the charter of fundamental rights will have an impact on the Good Friday agreement and on the perception that half of the community in Northern Ireland will have of respect for human rights, rightly or wrongly. Will the right hon. Lady therefore encourage the Government to draft a Bill of Rights for Northern Ireland, which is, of course, also a key part of the Good Friday agreement?
I am wondering which country the hon. and learned Gentleman is talking about, because the common-law tradition melds with the civilian tradition in Scotland. I take nothing away from his erudite explanation of the background to all this, but the point that hon. Members seek to make is that, as is the case with the Human Rights Act, having the charter of fundamental rights as part of our law gives ordinary citizens and businesses the opportunity to go to court to enforce those rights, which this Bill will take away from them.
No such charter existed with binding legal force before 2009, even in the European Union, but let us look at the circumstances. I contend that there are two ways of proceeding, of which the first is to have a broad and general statement of human rights-indeed, extended human rights under the charter-and to allow the courts simply to interpret them in given circumstances. Some Government Members and-I think-some Opposition Members believe that the proper place to resolve moral dilemmas is not necessarily in a court. As someone once said, why should a majority of five or nine judges take precedence over a majority of the 650 Members of this House on questions of moral dilemma? Many of these-
Will the hon. and learned Gentleman give way?
No, I am not going to give way again. This will become a debate between lawyers, and that is not the point.
It is actually on a moral point.
No, no.
The point is that these broad and general rights are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the Floor of this House and by a democratic vote in this Parliament.
Will my hon. and learned Friend give way?
If my hon. Friend will forgive me for a moment, I need to develop an argument, because I want to move on. Let us accept for the moment that there is a second and perfectly legitimate way, which international law accepts. International law does not require subscribing nations of the United Nations to adopt a Bill of Rights, and neither does the European Court of Human Rights-it never did require us to do so. It looked at the substantive and practical effect and how those rights were substantively protected in the jurisdiction. If we accept that for a moment, why should we not proceed by means of the Government's proposed policy of examining specific statutory remedies and specific rules of common law, and considering whether the right is satisfactorily protected? Some of us believe that the courts are not always the right place in which to deal with these matters. For example, article 20 of the charter of fundamental rights simply contains a right to equality before the law. That right has been enshrined in the common law in this country for centuries. Why should we have it in the charter of fundamental rights? Some say that there will be a problem between the two charters-
Will the hon. and learned Gentleman give way?
I thank my hon. and learned Friend for giving way. He makes a very passionate and highly informed speech, which explains so much about the basis of law and the merits of the common-law system. Surely the point he did not address, however, is this: the Bill enshrines EU law into domestic British law. Therefore it does not make sense not to incorporate the charter. That is the contradiction that concerns many.
It does make sense, because all that does is restore us to a position pre 2009 in the European Union. The general principles will still apply. There is no inconsistency by allowing the general principles-subject to amendments, which I am not speaking on; I have some sympathy with the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield -but I am convinced that incorporating the charter would be wrong and unwise. As a matter of policy, I urge my right hon. and hon. Friends and Opposition Members not to vote for that.
As we are in effect transposing the whole of EU law, with all the regulations that people have complained about for years, for example on bendy bananas, and the regulation of electrical items and consumer protections, does it not make sense to look at this third category of rights?
There is genuine concern across this House about this matter, because it cannot be right that people cannot raise a claim on EU law “retrospectivelyâ€, as the hon. Lady puts it. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) has raised this problem, so I hope the Government will examine it and come up with proposals that will satisfy this concern from right across the House.
For the sake of the record, I would be grateful to my right hon. Friend-I nearly said “learnedâ€ because he is doing such a great job-if he also looked at paragraph 5, which, in terms of interpretation, does relate to schedule 1 as well, and so cannot be left out.
Oddly enough, I was going to say that, so I will not do so now. I agree with that. While we are at it, I hope that the Solicitor General will also tell us that paragraph 3(1) of schedule 1 will be similarly adjusted, because, clearly, we need the same principle to apply to a private right of action as applies to the quashing of an enactment. Provided that those changes are made, I think that the basic articulation of clause 5 and schedule 1, unlike clause 6, is in reasonably good shape and therefore I hope that, as well as the very splendid offer of a full analysis of the rights, we will get a very clear statement from the Minister about the kind of amendments that will be brought forward on Report. That would certainly make me more than willing to support the Government tonight.
Stronger children's rights protections exist in the devolved nations, and Ministers in Wales are statutorily obliged to have due regard to children's rights, as expressed in the UN convention on the rights of the child, when exercising any of their functions, unlike in England. Does the hon. Lady share my concern that the Bill as it stands will remove the basic children's rights safeguards offered by the EU charter of fundamental rights and prevent devolved nations from upholding the present arrangements and commitments to children's rights into the future?
I thank the hon. Lady for her intervention, and she cites yet another powerful example of the extension of rights that is afforded by the charter to all our constituents, including those in the devolved nations. I want to say a word now about the views of my constituents and to represent their views. My constituents voted overwhelmingly-by more than 75%-to remain in the EU. They did so for many reasons-some very practical, and others deeply principled-but in all of the many conversations I have had with my constituents since the referendum, the word they have used most often is “valuesâ€. My constituents voted to remain in the EU because the EU represents their values of tolerance, diversity and internationalism, and there is no clearer articulation of these values than the charter of fundamental rights. Many of my constituents are deeply distressed by the EU referendum result, and they have been looking to the Government for comfort and for a negotiated Brexit deal based on the values we share with the EU. Adopting the charter of fundamental rights into UK law would send a strong signal about a continued basis of shared values with the EU and a commitment to uphold the highest standards of human rights protections as the foundation for any future trade deal with the EU. Without this commitment and this level of protection, the Government demonstrate once again that they have no commitment to high standards and that the UK's relationship with the rest of the world risks being based on a race to the bottom in terms of protections for UK citizens.
My constituents voted overwhelmingly, by 67%, to leave-there were variations around the country. I am listening carefully to the hon. Lady's speech, but is she seriously suggesting that the main reason most of her 75% voted to remain was the charter of fundamental rights?
I thank the right hon. Gentleman for his intervention. That is not my contention; my contention is that the charter of fundamental rights is a very clear articulation of one of the many reasons why my constituents voted so overwhelmingly for remain, and I seek to represent their views today, as I am sure he seeks to represent the views of his constituents in this important debate. The charter is the most up-to-date human rights framework from which UK citizens benefit, and it is incomprehensible that the Government should not want to commit to the same high standard as the basis for all future human rights protections for UK citizens post Brexit and as a basis for continuing to develop UK human rights law. That they will not do so is revealing and deeply concerning. My constituents did not vote for Brexit. But, above all, they did not vote for Brexit on any terms. They seek reassurance from the Government, and they do not find it in this deeply flawed Bill. It is essential that UK citizens can continue to rely on the highest standards of human rights protection post Brexit. I will continue to fight for that, and I will vote for these amendments.
It is a pleasure to follow the hon. Member for Dulwich and West Norwood (Helen Hayes). I agree with her that human rights law is a developing area of law, but I do not agree that this Government have any intention of trying to undermine it. We have heard a very interesting exposition of why the charter should not be translated into UK law. I accept that there are flaws with amendment 8, but I want to speak to it none the less because it is quite clear that, as I believe the Government have now accepted, the third category of rights needs some form of protection and incorporation, if it is not already protected. The development of human rights law started out in the 1920s with the Geneva conventions. Those conventions were signed by a limited number of countries and were basically the fundamental guarantees of the rights of citizens when all law and order has broken down and they are facing the worst circumstances of war and chaos. That is the true meaning of the word “chaosâ€, I would say to my hon. Friend the Member for Fareham (Suella Fernandes). The law has moved on and changed, and countries that were never signatories to those conventions are now subject to their requirements because they are the basis of the minimum rights that should be guaranteed in any civilisation. Countries that fail to guarantee those rights get prosecuted under the International Court of Justice in The Hague. In future we will no doubt see actions on Syria, and other actions. The 1950 convention that we originally signed, which forms the basis of our Human Rights Act, has therefore moved on, and there are rights contained in the charter that are not in the Human Rights Act.
The extra rights, or third-category rights, in the charter seem to be predominantly matters of social policy such as healthcare and schooling. While we might all agree that those things should happen, they should not be rights in a charter but matters of policy for Government to determine. That is why I take exception to my hon. Friend's argument. This is not really about rights but about policy.
I am afraid that the Walker case demonstrates exactly the opposite. Somebody was discriminated against because they were in a same-sex marriage, and the charter guaranteed the partner's right to the pension. That was not a matter of social policy; it was enforced because of the charter. That is why this debate is incredibly important. There will potentially be some areas that are a matter of policy, but it is important for the Government to go away and look at the amendments because serious points are being made that will affect people's everyday lives. This is not a debate on principles that do not matter; these are really important, fundamental issues that, as a democracy, we should be looking at in a sensible and reflective way.
I entirely agree that there are anti-discriminatory rights contained in the charter. However, does my hon. Friend agree that the issue which is not yet resolved, but which the Government's analysis may resolve, is whether those rights are already encoded in the case law and the general principles emanating from that case law, and therefore do not need to be in a separate charter for our purposes, or are not yet in the law and therefore would need to be in the charter?
I do accept that that needs to be looked at. The problem with the sovereignty of Parliament is that we always get to the point where the Parliaments of the future can change and erode these rights. I agree with my right hon. Friend's earlier suggestion that in due course the Human Rights Act ought to be amended to include the broader category of rights. We are seeing an evolution and a change in our rights, and it is important to reflect that in that Act.
The hon. Lady is making some excellent points. Several of her Conservative colleagues have argued that some of the rights contained in the charter are otiose-one of them being, perhaps, the right not to be subjected to forced expulsion. That is, thankfully, not something that we have seen in this country, but it was a persistent feature in 20th century Europe. We are now at a stage where the Home Office is sending out letters to EU nationals threatening them with deportation. Although some of those individuals may yet have recourse to their rights under the European charter, they will not be able to exercise them after we leave.
The hon. Lady does my colleagues a great disservice. The rights that my colleagues described as otiose were, for example, the right to petition the European Parliament or the right to stand in EU Parliament elections. I think she is also being unfair to the Home Office, which has made it very clear that the letters to which she refers were sent out by mistake and did not accurately reflect the position. Nothing that the hon. Lady has said takes away from the point that the charter of fundamental rights contains a third category of rights that may not have protection. I am encouraged that the Government are going to undertake the exercise that has been mentioned, which they need to do, before Report. It is important that the Committee takes very informed decisions about where the gaps are. For that reason, I very much support amendment 10.
This situation has evolved over a number of years, and it continues to do so. I do not want to introduce too much of a partisan element into the debate, but I want to give an example of how the situation has changed over the past few years. When we debated the Lisbon treaty in this House in 2008-something that I was actively involved in at the time-the policy of the then Labour Government was that the charter should not be justiciable in the United Kingdom's courts. In fact, the then Government were at great pains to stress-
Is this an intervention?
It is. The then Labour Government said that they had a protocol that specifically ruled that out. That is how much things have changed.
There has been much misrepresentation in the House of the protocol, but it is quite clear what it said: the rights contained in the charter were existing rights. In other words, the charter did not create any new rights that had not previously existed. The position of those on the Treasury Bench is that the rights are of long standing, and they apply to UK citizens. I am very keen to ensure that where those rights may not be adequately protected, the gaps are filled. But to say that protocol 30 was an opt-out, which is how it has been portrayed in the debate, is, quite frankly, inaccurate and not right.
The hon. Lady is being generous in giving way. Can she expand on how she sees us getting from our current position to the point at which the Human Rights Act includes the rights that she thinks it should include? What sort of transition period does she envisage, and how will the rights be protected in the interim?
I very much hope that those on the Front Bench will go away and undertake their promised exercise, from which we will be able to see exactly where the gaps are and where the third category of rights may fall. It seems to me ridiculous that we are going to bring over 12,000 regulations covering everything from fridges to bananas, but we are not going to deal with some of the most fundamental and basic things that guarantee citizens certain levels of protection. That is the fundamental principle, and it is why I support both amendments 10 and 8.
Does my hon. Friend agree that it is really important, given the many concerns about the Bill, that we make it absolutely clear, as she quite rightly points out, that we have a very proud history on human rights in this Parliament and in this country? The idea that this Government are in some way taking away rights from people is simply not true, and it is very important for all of us to report this, especially to our constituents, with great accuracy.
I entirely agree with my right hon. Friend. In fact, I could not have put it better myself. In that regard, I adopt everything she says. This is important because we have been publicly vilified for tabling amendments to the Bill. Debates such as this illustrate very dramatically to our constituents why it is so important to undertake a democratic process, which sometimes involves tabling probing amendments-I know amendment 8 is such an amendment-so that we can look at, consider and debate these issues and, I hope, come to consensus across the House. I know other Members wish to speak. These are incredibly important matters, and I am waiting to hear what Ministers say about how they will approach them.
I agree entirely with my hon. Friend. While the Government have made an argument that there is a problem because of the international law aspect in such a piece of litigation going all the way to the European Court of Justice, there can be no argument that the same rules that applied when we were in the EU should apply to any such piece of litigation, even if the end-stop is our own Supreme Court. It is perfectly easy to do, and the Bill has to be altered to allow that to happen.
The case that my right hon. and learned Friend makes is completely unarguable. There is no answer to that thus far from the Government, and the only answer is to change and improve the Bill. To fail to tie up that clear, apparent and recognised loose end in the Bill could have the effect, almost by negligence or a measure of inadvertence, of denying UK citizens rights they might otherwise have. That would seem to me to be almost verging on the disreputable. I do not believe that the Ministers on the Treasury Bench wish to do that for one second and I know they will want to put it right. I hope that they will make it clear that it is the Government's intention to make sure that that lacuna is resolved.
On amendment 10, I am sure that my hon. Friend observed what was said about the absence of reference to paragraph 5 of schedule 1, which deals specifically with the question of interpretation. Does he also agree that one of the greatest dangers is the idea that the Supreme Court, of its own volition after we have left, will be able to disapply any legislation? Does he not agree that that is a fundamental principle, too?
I think the most important principle is legal certainty. It may well be very sensible for us to start to remove, as soon as possible, bits of retained law that we do not want to keep, but it seems to me to be equally implausible to retain something without following through on the logic from whence it comes. I recognise my hon. Friend's point, but the issue, as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) pointed out, is one of the Bill's own making. I hope that the Government will table an amendment-before the Report stage-to remove these internal contradictions sooner rather than later. I think we all want to be in the same place, but justice requires not only independence of the courts but a proper framework in which it can operate. Above all, it requires certainty. The Bill as it stands runs the risk of creating uncertainty, and that cannot be in anybody's interest. I have been struck by the tone of the responses we have had from the Government Front Bench so far, but it is really important to stress that this is a matter of very significant principle. We wish to give the Government the best possible fair wind. I have no doubt whatever about the intentions, credit and integrity of the Solicitor General, who will reply to the debate shortly. What he says will weigh very heavily with many of us. I am sure he will do something that is constructive and helpful, and will help to improve the Bill. This is an important point that I wish to put on the record, because if there is not something of that kind, we will have to return to the issue as the Bill progresses. I hope that that will not be necessary. I believe it will not be necessary, but it is important to stress how fundamentally significant it is. These matters may seem technical, but they are vital to the underpinning of a sound piece of proposed legislation going forward.
It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House. The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis-as we are no longer to be members of the European Union-it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought. It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper-which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.
Before my hon. and learned Friend moves on-very authoritatively, I am sure-to the details of the amendments, may I point out that he has just made an important statement? He said that he had thought about whether retaining the charter of fundamental rights after we had left would add anything to our legal rights in this country beyond what we already have. In the past half hour, we have heard my hon. Friend the Member for Eddisbury (Antoinette Sandbach) describe what she calls the third category of rights, which do not appear anywhere else in our law, and we have just heard the hon. Member for Edinburgh East (Tommy Sheppard) list three or four rights in the charter that are not replicated anywhere else. Which of those rights would the Solicitor General be happy to see abandoned? What is going to happen to the third category of rights? He must explain why he does not think the charter adds anything, given that the main reason people are trying to get rid of it is that it has extended the scope of European-sponsored human rights law in this country.
As the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab) has mentioned, the Government will, on 5 December, publish their full analysis of the sources of the rights that we have been talking about. I remind my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the underlying principles of EU law from which the charter has been developed will be part of the body of law that we bring down to the UK, and will be able to be relied upon.
Is not the answer to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the rights might not be replicated in our existing law but the protections will be? The fact that a general statement of a right is not replicated verbatim in our law does not mean that those rights are not otherwise protected adequately and fully by our laws.
I am grateful to my hon. and learned Friend, but I feel as though I am about to become a proxy in a debate between him and my right hon. and learned Friend the Member for Rushcliffe, so I will now develop my point.
Will the Minister give way?
If I may, I will move on to amendment 10, which would remove paragraphs 1 to 3 from schedule 1. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) earlier drew the attention of the Committee to these important matters, and I am grateful to him for the constructive way in which he has sought to approach this issue. First, we cannot agree to the removal of paragraph 1 because the effect would be to create huge uncertainty. How would our domestic courts approach the task of assessing challenges to the validity of converted law? That is a job that they have never had before. Who would defend those challenges? What remedies would be available to the courts? How could converted law that was found to be invalid be replaced? The amendment does not deal with any of those vital questions. Similarly, we cannot accept that paragraph 2 should be removed from the schedule. There is no single definitive list of the general principles. They are discovered and developed by the Court of Justice of the European Union. Paragraph 2 in its current form maximises certainty by specifying a clear cut-off point and stating that a general principle needs to have been recognised by the Court before we exit. Without that, it would be completely unclear which general principles could be used as the basis for a challenge. It is not even clear whether post-exit CJEU jurisprudence could be taken into account, and so whether new principles couldbe discovered after exit. That would be completely inappropriate.
I would like gently to point out that I did not propose deleting the interpretation provision 5(2). Admittedly, it does not interpret anything because the rest is gone, but it nevertheless made it pretty clear that we were talking about retained EU law and that such law was created prior to the date of our exit.
I think that my right hon. and learned Friend has answered his own point. Without sub-paragraph (2), paragraph 5(2) becomes rather difficult to apply. I want to get to the nub of his concern, however, which is paragraph 3 of the schedule. We recognise the strength of the views that he and other Members on both sides of the Committee have expressed on this issue, many of whom have spoken this afternoon. We are listening, and we are prepared to look again at this issue to ensure that we are taking an approach that can command the support of the Committee. Simply removing paragraph 3 in its entirety, however, is not something that we could agree to. It would result in an open-ended right of challenge based on the general principles of EU law, however they are defined, after exit. It would mean that domestic legislation, both secondary and primary, rules of law and executive action could be disapplied or quashed if found to be incompatible with those actions. Currently, the general principles apply when a member state is“acting within the scope of EU lawâ€, so after exit the circumstances in which the general principles could be relied upon would not be clear. Allowing courts to overturn Acts of Parliament, outside the context of EU law, on the basis of incompatibility with these principles would be alien to our legal system and would offend against parliamentary sovereignty.
My hon. and learned Friend raised the question of scope and when this would apply, but it seems to me that he was answering his own question, because it comes when there is a clash between the law that has been retained and has supremacy and any domestic legislation. It is precisely because the supremacy of the retained EU law is kept that it is necessary also to have the potential for the general principles to have that supremacy as well, because they are essential to the purpose of interpretation of that law.
I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation. The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.
I am grateful to my hon. and learned Friend, who has just said some of the words that many of us hoped to hear, which is that Government amendments to that effect will come forward on Report. Will that include an appropriate amendment to paragraph 3(1) on the private rights of action?
Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).
I am most grateful to my hon. and learned Friend, who has made a really important concession at the Dispatch Box, which I much appreciate. It clearly reflects the disquiet that has been shown across the House. I can tell him now that, in the light of that, I will not be pressing my amendment to a vote. However, it is clear from what he has said that although some of the issues that I have raised have been met, I ought to put it on record that it is also clear that the issue about whether this could be used to disapply primary legislation appears to remain an area of potential disagreement between us, which I hope we may be able to iron out. I have to say that it is a strange area of disagreement, given that elsewhere we have precisely the possibility of that happening, by virtue of keeping the supremacy of retained EU law.
As I have said, I want to ensure that the dialogue that has been opened continues. My right hon. and learned Friend knows that at all times the spirit with which he and other hon. Members have tabled amendments has been entirely understood and respected by those on the Treasury Bench. We have never sought to pillory Members for doing the job of scrutinising legislation. I have been there myself many times and can remember tabling dozens of amendments in order to probe the Government's intentions in a Bill.
We are making some progress, but I point out that I am the second name on the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and I shall inquire of the Chair between now and the end of the debate whether I have a right to call for a vote on those amendments, which I think I may have. I am extremely glad to hear the Solicitor General say that he will bring forward a Government amendment, because he has vigorously rejected just about every argument that my right hon. and learned Friend has used throughout the debate and has stuck rigidly to the interpretation of the Bill as it stands-with which we started. Will the Government's amendment at least seek a compromise if it does not move completely towards my right hon. and learned Friend's arguments? It is no good fobbing us off with more discussion if the amendment will not actually change the policy.
With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.
I will give way to my hon. Friend.
I hope that the Solicitor General will be good enough to look at the deficiencies in amendment 10. Paragraph 5 of schedule 1 deals with interpretation and therefore also applies to paragraphs 1 to 3. As he quite rightly said before he took the intervention, the matter is being scrutinised. As Chairman of the European Scrutiny Committee, we have it on our agenda, and we are scrutinising all such matters and will continue to do so, because we want to be sure that this House is not overridden by disapplication.
I am grateful to my hon. Friend. I am always interested in looking at how one particular paragraph of a schedule applies to another, but I am particularly interested in paragraph 3.
I will give way to the hon. Lady, who has been very tenacious. Please forgive me.
Patience is a virtue, and I am not blessed with an abundance of it, so I am grateful to the Solicitor General for taking my intervention, even if I have been bobbing up and down for ages. The Solicitor General has made an important concession this evening, and I respect that. When he carries out his promised review of the Bill's impact on rights and the general principles, may I invite him to look carefully at the impact on the Good Friday agreement? The Bill is being used in a divisive manner at home in Northern Ireland, where it is being exploited by those who wish to do so, so it would be enormously helpful if the Solicitor General could reassure us that the Bill will not have a negative impact on the Good Friday agreement.
I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.
Will the Solicitor General give way?
I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.
Will the Solicitor General give way?
If the intervention relates to the point I was making, I will give way.
I thank the Solicitor General for giving way. It is important that the House has clarity on the content of the memorandum he proposes to publish on 5 December. He has said that the memorandum will seek to identify the sources of each right contained within the charter. He has heard in today's debate that there is concern on both sides of the House that he will not be able to identify the sources of every single one of those rights, and a number of instances have been cited. Will he also undertake that, where there are gaps, his review will outline what action the Government are preparing to take to fill those gaps so that, at the point of exit, we retain all the existing rights?
I make it clear that, in the words of both the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton, today and, previously, the Secretary of State for Exiting the European Union, we are seeking to publish such details. If there are any further concerns, we can have a continuing dialogue to ensure that the information is in a comprehensive form that seeks to address the issues raised today and elsewhere. The publication on 5 December will therefore be a meaningful event that assists everybody in greater understanding and assists greater progress on getting this process right. On the question of general principles, I emphasise that there are good reasons to say why it would not be appropriate to incorporate the constitutional and administrative principles of the EU as free-standing principles in our law by inserting a specific right of action, or to incorporate the remedy of striking down domestic legislation based on incompatibility with EU law principles, when we are no longer a member of that institution. First, some of these principles will, indeed, cease to make sense when we have left, except for the purpose of interpreting retained EU law, whereas other principles are already, and will continue to be, reflected elsewhere in our domestic law anyway.
Has not the Solicitor General, again, just answered his own question? I appreciate that some of the general principles will evaporate because they cease to be relevant, but those that are relevant to the interpretation of retained EU law must still be relevant because they will be used as a tool and aid to interpretation. In those circumstances, why should an individual or a business be deprived of raising them as arguments for saying that, in fact, this law is supposed to be supreme, and therefore able to overcome our own domestic legislation, and ask why the general principles cannot be used to have that bit of offending domestic legislation set aside? I just do not understand the rationale.
I thank the Solicitor General for saying that he is going to look seriously at these points during the Committee stage. The point of bringing EU law into the UK law is to give certainty. Each of those European regulations has strict articles-the letter of the law-and the recitals, which give guidance as to how it is to be interpreted and implemented. Will he assure me that he will seek to ensure that our judges will look at not only the articles, but the recitals-the principles behind it?
I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.
I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister's spokesperson that the Government expect the ECJ's role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?
The hon. and learned Lady has a keen memory and she will not have forgotten the Government's commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period- call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period. I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands. I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.
I am sorry but I must press on. The first point to make on the amendments is that whereas some of the general principles are now set out expressly in the EU treaties, the general principles were first recognised by the European Court of Justice. They were and are judge-made law, and all the principles ultimately have a basis in case law. We debated the inclusion of article 191 of the Lisbon treaty on the functioning of the European Union at length on day two of Committee, so I will not repeat those arguments here. That said, though, I wish to re-state that the inclusion of article 191 would risk going further than the existing principles that are set out in EU and UK law today. The requirements that the amendments set out do not exist today in either EU or domestic law. If the amendments were made, they would require the courts to interpret all legislation compatibly with the environmental principles. Given that the Bill's purpose is to bring into effect the law that we have currently, the amendments regrettably risk generating a measure of uncertainty and a degree of confusion about the legal position.
May I return to clause 5(1)? It states:“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.â€Will the Solicitor General please look at that in light of the Government's excellent determination that we will still effectively be subject to the ECJ during the beginning of the transition period, because if that is to be the case, it is not consistent with clause 5(1)?
Will my hon. and learned Friend give way?
No, I will not give way, as I need to develop my point. For example, in 2015, in their legal challenges to the domestic legislation standardising the packaging of tobacco products, the tobacco companies reserved their right to claim Francovich damages should they succeed on the substance of their claims against the Government. I make this point because any suggestion that removing the Francovich procedure reduces access to justice for the average citizen is not reflected in the UK experience.
I am very grateful to my hon. and learned Friend. I understand everything that he is saying. He knows what I have said about Francovich damages and their disappearance being inevitable, but the point about the transition is key. I have to say to him that it is not a comfortable argument for a Law Officer of the Crown to make to suggest that just one person, or one business, being deprived of a legal right is an acceptable circumstance, because it plainly is not.
I am delighted to hear the Solicitor General say that. As he will appreciate, the point is a very simple one: it must be the case that the damages are available if the action takes place before exit day. It is a very basic principle of law and quite easy to correct.
Perhaps I can forgive my right hon. and learned Friend his eagerness to hear the remarks that I was going to make. I am sure that when this debate finishes he and I will continue the dialogue that we have had for some time about these matters. It would not be right to maintain, in general, such an open-ended right to this form of damages after exit for any and all potential pre-exit causes of action. I am concerned that we would end up with an almost indefinite trail of cases. That is not good for certainty, and it is not good for the transition we want to make.
Before the Solicitor General finishes his remarks, may I say, as a non-lawyer listening to what has largely been a debate between distinguished legal minds on both sides of the House, that two things strike me as important? The first is that this debate has really been about legislative quality control, rather than political Punch and Judy, and that should be very reassuring for anybody watching this debate. The second is that the tone with which my hon. and learned Friend and his colleagues have engaged with colleagues on both sides of the House to find a way through and to make the best law sends a fantastically powerful message. Will he guarantee to continue working in this spirit to take the Bill forward?
I am very grateful to my hon. Friend for making that observation. I can assure Opposition Members that I have listened carefully to the submissions and observations by Members on both sides of the House, in the true spirit of Committee.
I am most grateful to my hon. and learned Friend for giving way, because, unfortunately, I was not able to be in the Chamber for a large part of the debate, as I was chairing a Bill Committee. I thank him for taking into consideration the points I raised on behalf of my constituent concerning Francovich. I hope that what he is a saying from the Dispatch Box will go a long way towards providing the comfort and certainty my constituent requires. May I thank those on the Front Bench for listening to the points I made in the debate the other day? I hope this will move us towards a successful conclusion in the case of my constituent.
I am extremely grateful to my right hon. Friend. For the reasons I have outlined, I would, with the greatest of respect, and in the spirit of comradeship almost, urge hon. and right hon. Members not to press their amendments. In summation, we have listened and we will continue to reflect carefully on all the arguments that have been made today. The Government believe that the approach we are taking is the right one as we carefully separate our legal system from that of the EU and restore democratic control to this Parliament. I commend schedule 1 to the Committee.
I am following my hon. Friend's arguments very carefully, and I am very pleased to hear him setting out why the rights he is talking about will be protected after we leave the EU. Does he agree that such inconsistencies will only further the interests of lawyers, rather than our constituents, after we leave the EU?
This is about not furthering the rights of lawyers, but about how we as a House ensure that there is a corpus of law that is consistent, serves the interests of our constituents and can be considered in an intelligible and consistent way. My view is that the remedy for this inconsistency is not for us to bring in the charter lock, stock and barrel to apply to all law. We could do that, but it would not work because it would create great confusion respecting the existing European convention on human rights, which is of course incorporated into English law and British law. Instead, the time has come-not today and not tomorrow, but at some time in the near future-to look at granting British citizens a corpus of rights to sit alongside the ECHR, as a written constitution, as it were, that extends the Human Rights Act and allows citizens to apply their rights against any law in this country. The logical next stage is to have what is in effect a written constitution.
As a matter of fact, my hon. Friend and I may be the only two Government Members who believe in having a written constitution. I thought I was the only one-
Three.
There are three of us. I am very grateful. Let us not count. In any event, the number is small. Does my hon. Friend agree that, in the interim, it would be a good step if the rights we identify, as a result of the Government's analysis, as coming out of the charter-the third category rights-should in due course, although not of course in this Bill, be added to the Human Rights Act in a way that at least enables such a degree of entrenchment?
That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act. My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.
I think I agree with everything my hon. Friend has said. Does she agree that it would nevertheless be possible to put these rights under the umbrella of additions to the Human Rights Act and thereby enshrine them without creating a role for the Supreme Court to strike down Acts of Parliament?
In principle, that would be possible, but I pray in aid the comments of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who has just entered the Chamber, and who eloquently explained that there is no substantive need to do that because those rights are protected in existing legal frameworks or the common law. As I was saying, the charter is an instrument of the EU for allowing the activism of the ECJ. It is a mechanism intended to ensure the supremacy of EU law in national legal orders, as is made clear in the preamble and in the recent case of Siragusa v. Regione Sicilia, in which it was made clear that the primacy of EU law was the priority. If we are truly leaving the EU, it no longer makes sense for us to be bound by a document that is furthering EU integration. I appreciate the constructive attitude of all colleagues in attempting to help the Government to improve the Bill, but I gently caution against the risks presented by some of the amendments. The British people voted last year to restore sovereignty to UK courts and return supremacy to our judges, because they trust our legal order. Why do they trust it? They trust it because for centuries, since 1215 and Magna Carta, this country has been the home of civil liberties and human rights and has protected the vulnerable against excesses of power. That is a tradition of which we are proud and which will be protected under this Government.
On a point of order, Mr Deputy Speaker. I should like to inform the House that on 11 and 17 October I tabled written questions in which I mistakenly omitted to include a reference to my entry in the Register of Members' Financial Interests, which includes a visit, in September this year, to the Kingdom of Saudi Arabia, sponsored by the Foreign Ministry of that country. I am pleased to be able to put that on record, Mr Deputy Speaker, and I am grateful for your patience.
I beg to move, That the clause be read a Second time.
I completely agree with the point my hon. Friend is making so eloquently. Does the news from Brussels in the last few minutes about the complexity of the negotiations not show that the Bill, and the whole process of Brexit, will have far greater consequences for our country, not just for the economy but our whole constitutional settlement and the way we run our affairs here in these islands? The very serious consequences needed to have been much more clearly thought through by the Government.
I encourage Ministers to listen very carefully to what my hon. Friend says. Like me, he has a deep concern about what clause 11 may mean for the devolved Administrations. We watch with alarm the statements being made today. We hope the position is clarified very quickly.
My hon. Friend refers to Donald Dewar. The basis for the devolution process came about via referendums in Scotland, Wales and both parts of Ireland to agree the frameworks under which we now operate. Is it therefore not a contempt, an insult, to the people as a whole-not just this House-for the Government to undermine the Good Friday agreement and the devolution settlement, which was endorsed by the people in referendums?
My hon. Friend is right. People voted for these powers to be devolved and it is wrong for the Government to attempt to use Brexit as an excuse to bring them back to London. The historian Professor Tom Devine called Scottish devolution and the establishment of the Scottish Parliament“the most significant development in Scottish political history since the union of 1707.â€The Conservative party may have been opposed to devolution in the 1990s, and the Scottish, Welsh and Northern Irish Administrations may not have been conceived of in the early '70s, but they are now an important and respected integral part of the constitutional architecture of our country. The Good Friday agreement could never have succeeded without devolution to Northern Ireland, and, in the view of many of those involved at that time, the fact that devolution to Scotland and Wales took place at the same time as the Good Friday negotiations helped to ease some misgivings about the process. Two nations of our Union voted to remain in the EU and two voted to leave. Our nations are run by different parties with different views about what Britain should look like after Brexit. The challenge for the Government therefore is significant. Just because it is challenging, however, does not mean the Government should attempt to take shortcuts that undermine the credibility, autonomy or sharing of decision making that are now an accepted feature of our democracy.
I pay tribute to my hon. Friend for all her work on the Bill. Is she surprised, as I am, that the 12 new Scottish Conservative Members of Parliament were sent here by the Scottish Conservative leader, Ruth Davidson, under the banner of standing up for Scotland, yet it appears that, with regards to the Bill and these clauses, all they will be standing up for is the Government Whips Office?
We will have to wait until later this evening to see which Lobby they choose to walk through. I, like my hon. Friend, was encouraged by some of the comments from Ruth Davidson and her hopes for the new group of Conservative Tory MPs, but we shall see if they live up to the billing she has given them. Whether they want to or not, the Government must adapt to the very different constitutional circumstances that now exist. They are very different from those that existed before 1973. Clause 11, which is intolerable to the devolved Administrations, sets it as the default that powers currently exercised in Edinburgh, Cardiff and Belfast within EU frameworks will be ripped away and held in London. First Ministers are calling this a Whitehall power grab.
The hon. Lady is making a passionate speech, but does she accept that powers are not being ripped away, given that they are not there for the devolved Administrations at the moment? Whether hon. Members think it right or not, as a matter of law those powers are vested in the EU, so if they come back to the devolved Administrations, they will be additional powers. Powers are not being taken away.
I think that the hon. and learned Lady has not-if I may be polite-quite grasped what we are talking about. We are talking about a framework, within which the devolved Administrations currently make decisions, that is held now at the EU level. Our desire is for a UK framework that enables those decisions to continue to be made by the devolved Administrations. It is very different from saying, as I anticipate some Government Back Benchers will claim, “Well, the powers are currently held in Brussels, so why is everybody so worried about it?â€ Actually, the decision making is held in Belfast, Edinburgh and Cardiff.
Does my hon. Friend agree that in Wales devolution actually came in two tranches-in 1997, but also in 2011, when Wales voted overwhelmingly for full law-making powers-and that any rolling back of those powers would be simply unacceptable and anti-Welsh in the extreme?
I would never wish to be accused of being anti-Welsh.
My hon. Friend is talking about the UK framework and the devolved Administrations. Would she care to comment on the quite astonishing scenes we have witnessed today? It is apparent that the Government have not spoken to the Northern Ireland First Minister about what should happen with respect to any deal. If we are to have special arrangements-or special alignment-between Northern Ireland and the rest of Ireland, what is wrong with giving the whole UK that special alignment? It is called all of us staying in the customs union.
My hon. Friend is highlighting the alarm with which we are witnessing the statements coming out today-the confusion, the briefing, the counter-briefing-and with which we contemplate the destabilisation, particularly in Northern Ireland, that could result. We are deeply concerned about it. I will resist making any specific comment until we have a much clearer picture of the situation, but I am sure that every Member will want to ensure that the negotiations proceed this week and that there is a clearer outcome. The Prime Minister has asked for that to happen at the end of the week. We are expecting a full statement tomorrow, and we look forward to it. I am sure that some very serious questions will be asked of the Prime Minister tomorrow about the conduct of the negotiations.
Is there not a really important point that the Government seem to forget? When they are negotiating about a border, or no border, or about divergence from or convergence with a regulatory framework on the island of Ireland, they must speak to the First Minister of Wales as well, because the vast majority of the exports from Ireland into the rest of the European Union go through Wales. There is no point in coming up with a Bill that simply ignores the devolved Administrations.
My hon. Friend is right to highlight the fact that the Government seem to have acted in a rather high-handed way with all the devolved Administrations on a matter that is so fundamental to the future of the citizens of this country.
I agree with the hon. Member for Rhondda (Chris Bryant). The other border between the United Kingdom and Ireland is the one that passes through Holyhead and Fishguard. When I asked the Secretary of State for Exiting the European Union, in the Select Committee, what consideration he had given to the position in Holyhead in particular-given the chaotic road across the island, the two insubstantial bridges, and the extra traffic from the proposed Wylfa B power station-his answer he gave was very clear: “None.â€
That is shocking. I am sure that the hon. Gentleman and other colleagues from Wales will continue to make the point as the debate proceeds. Needless to say, the Government's attitude has been most concerning to me and to First Ministers, because it suggests that they are not interested in the needs and ambitions of the people of Scotland, Wales and Northern Ireland. That approach is regrettable, but it is not too late to change it.
My hon. Friend is being very generous in giving way. Just last week, senior border immigration officials told the Home Affairs Committee that the implications for the Welsh ports of Holyhead, Fishguard and Pembroke, which other Members have mentioned, are very serious in practical terms unless we remain in the customs union, for instance. That underlines the point that my hon. Friend is making about proper frameworks, the Joint Ministerial Committee and so on, and the points made in the new clauses and amendments.
I could not agree more.
The hon. Lady is making a persuasive speech. She mentioned the renowned Scottish historian Sir Tom Devine. He, of course, has made the journey from being a supporter of devolution to being a supporter of independence. Does the hon. Lady agree that if the Bill is allowed to drive a coach and horses through the current devolution settlement, a great many more Scots are likely to follow Sir Tom Devine by becoming supporters of independence rather than devolution?
I am following the hon. Lady's speech carefully. I am also looking very carefully at her new clause, but I do not see how it would resolve the question of what would happen if we set up joint structures and there was disagreement about how they will work. It can, of course, be argued that the Parliament of the United Kingdom is ultimately sovereign, so I think that it is a matter of law that if there is a disagreement, the logjam would ultimately be resolved by this Parliament and the Government in Whitehall having primacy. The question the hon. Lady has to answer is whether the structure she is putting forward would be workable in practice, or if it would just lead to conflict.
The new clause is not intended to cause conflict-we already have a certain degree of conflict between the Administrations-but, rather, to remove that conflict, and to provide a mechanism by which issues can be resolved. Hearteningly, the JMC seems to have started to function rather better than it did when we last went around this particular issue. It has issued statements that explain how it wants these frameworks to be established, so it does not seem to be too much of a leap to write that into the Bill. The right hon. and learned Gentleman will probably remember our attempt to put the JMC on a statutory footing when we considered the article 50 Bill, but this time the Brexit negotiations are upon us. The Government have lost their majority since our last attempt, so I encourage Ministers to take a more conciliatory approach this time. New clauses 64 and 65 would force the Government to respect both the devolution of decisions, and those who are responsible for taking the decisions.
Does my hon. Friend agree that the JMC should be producing communiqués that give the public and this House slightly more information? The communiqué published on 16 October merely stated the attendees and apologies, and concluded:“Ministers noted the positive progress being made on consideration of common frameworksâ€. Does my hon. Friend agree that we need slightly more information?
I hope that Ministers are listening and taking note.
Do the Welsh First Minister, and indeed the Welsh Cabinet Secretary for these matters, agree with the wording of new clause 64? Given their public comments, I think they would find it very difficult to agree totally with its current drafting.
My understanding is that the answer is yes. We have not worked alone on this-we have worked together with the devolved Administrations-so I am slightly surprised by that question. Perhaps the hon. Gentleman is angling for something. Is he trying to extract something from this that I am unaware of?
The plight of the First Minister has always been that new UK frameworks have to be made collaboratively in a partnership of equals. The new clause seems to suggest that this would be a matter determined by Westminster, in negotiation with the devolved Governments, but that is a totally different thing.
The intention is that the frameworks would be achieved collaboratively. That is precisely what we are trying to achieve. It is, of course, a matter for the hon. Gentleman if he is trying to force a wedge between me and my hon. Friends and the First Minister, but I do not think he is going to be successful.
On the point about conflict that was raised by the right hon. and learned Member for Beaconsfield (Mr Grieve), it seems to be the way in which the Bill has been structured that creates the conflict. The Government could have done this differently. They could have said, “You can have all the powers back and we will hold a veto.â€ The question is about getting agreement on the frameworks when they are necessary. The two new clauses to which my hon. Friend is speaking seem to me-and, I am sure, to many people-to set out a really practical way of bringing the two sides together to get those agreements. That is the route by which we will find a way through this problem.
That is absolutely the approach that we have tried to take. We are trying to be practical, realistic and respectful, and to work collaboratively with the devolved Administrations.
Will the hon. Lady give way on that point?
I believe that the hon. Gentleman is sincere that his intervention will be on that point.
Perhaps the hon. Lady requires a note from elsewhere to say that this is not one of the amendments brought forward by the Scottish Government and the Welsh Government. In fact, the new clause says something entirely different. It states that “Ministers of the Crownâ€ would “create UK-wide frameworksâ€. The Welsh and Scottish Governments want this to be a combined process that involves all the parties.
I understand what the hon. Gentleman is saying, but I think he is dancing on the head of a pin. We want the creation of the frameworks to be done collaboratively by the devolved Administrations and the Government.
Will the hon. Lady give way?
I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.
I will give way one last time, to the former Minister.
Pursuing the same point, does the hon. Lady not accept that new clause 64(3), having provided that there should be no new frameworks created without the agreement of the devolved Administrations, would be a recipe for chaos, on the basis that if there were no such agreement, it would be impossible to create the frameworks that she seems to acknowledge as so desirable?
The Joint Ministerial Committee said that it wanted frameworks to be created in this way, I think at the time when the right hon. Gentleman was a Minister, so I really do not understand what his objection is today. We need look no further than Wales to learn of the practical benefits of devolution. It is right that Cardiff should decide the best way to support farmers in Wales, within an agreed framework but according to their needs and priorities. Jobs Growth Wales has so far supported the employment of 17,000 young people using European funding. That decision would not have been possible if the arrangements proposed by the Government had been in place at the time. When I was first elected, the Tories and the Lib Dems scrapped the almost identical future jobs fund in 2010. Such decisions were devolved for good reason, and we will support the devolved Administrations in keeping them. Amendments 42 and 337, alongside new clause 64, would allow the Government until the end of the transitional arrangements to create UK frameworks. I want to make it clear to the Minister that in tabling these new clauses and amendments, Labour is attempting to assist the Government by enabling the devolved Administrations to be engaged in decisions that have a direct impact on their people. If the Government accept our criticisms and proposed improvements, Ministers will find that they have a less turbulent time in the months ahead. Do the Government really think that it is wise to pass a Bill to which the devolved Administrations are so hostile? Ministers need to focus on negotiating the best possible deal for all the people of the UK, not on embroiling themselves in constitutional rows with Edinburgh and Cardiff.
I first want to pick up on an earlier comment about what Mr Juncker has been saying. If one could get past the headlines of the biased BBC, the reality is that Mr Juncker actually said that enormous progress has been made in the talks. It might be worth listening to what he actually has to say for once instead of listening to all the usual commentators, who are doing their best to undermine the excellent work that has been done by my colleagues in Government. The hon. Member for Darlington (Jenny Chapman) delivered an interesting speech in which she made a couple of pointed, but very kind, remarks about the fact that the Conservative party had opposed devolution, and she is of course absolutely correct. We totally opposed devolution in Wales and in Scotland, too, but it is Wales that I will talk about. Indeed, I was one of the leaders of the anti-Welsh Assembly campaign in 1999. However, the hon. Lady forgot to mention something in her long speech, despite making several references to devolution, and it is rather an important point. After the referendum in 1999, when the Welsh Assembly was voted for by just over half of the half of the electorate that came out to vote, the Conservative party totally accepted the result of the referendum. On the very next day, we said that we did not like it and that we would not have chosen it ourselves, but we respected the voice of the people of Wales. We recognised that when people vote in a referendum, even if the result is far from overwhelming, we have to adhere to the result. That is a lesson that the hon. Lady and many of her colleagues have yet to learn properly.
Would the hon. Gentleman like to explain to the House why he was opposed to Wales having full law-making powers in 2011?
I would be delighted to explain, but I probably will not be able to today. It is a lovely idea, and I would be more than happy to spend 20 minutes or so on it, but-
Let me return to the matter in hand for a minute, because the hon. Member for Clwyd South (Susan Elan Jones) was also there for the underwhelming vote for devolution in 1999, and she will surely recall that the Conservative party did not call for a second referendum. We did not threaten to drag the whole thing through the courts to get the judges to overrule the will of the people of Wales. We were not going around pretending that people had changed their minds and saying that we needed to run the whole thing over again. We did not say that we were going to drag the whole thing out and do everything possible to undermine it. In actual fact, Nick Bourne, who was then the leader of the Welsh Conservatives and is now a Member of the other place, sat down with Members of all parties on the National Assembly advisory group and helped to draw up the Assembly's Standing Orders, most of which are now in place. That is the difference between the Conservative party's approach when we were on the losing side of a referendum and the approach of the Labour party, the SNP and many others now that they are on the losing side. The reality is that the change will be called a power grab. I did not hear the phrase used today, but it will be described as a power grab. Of course it is a power grab, and what a wonderful power grab it is, too. We are grabbing powers from Brussels and bringing them back to London. Not only that, but over the next few years- SNP Members can shout all they like; I am waiting for one of them to intervene.
Will the hon. Gentleman give way?
I would be delighted.
Perhaps the reason why the hon. Gentleman's campaign against the Welsh Assembly in 1999 failed was that the people of Wales voted in 1997. It might have gone better if he had turned up two years earlier. As we are talking about where power ultimately resides, I believe 100% in Scotland's ancient doctrine that the people are sovereign. Where does he believe ultimate sovereignty over Scotland resides?
As the hon. Gentleman knows, that is for the Scots to decide, and they decided that, for the time being, ultimate sovereignty rests within a United Kingdom Parliament in which the Scots are heavily and well represented, if I may say so. I totally respect that, and I hope he does, too. A few weeks ago, Scottish National party Members were telling us that we should all support and recognise the referendum result in Catalonia, where a nation decided that it wanted to break out of a union with Spain. I find it ironic that the SNP is saying that we have to recognise referendum results when it happens to agree with the policy but that we should completely ignore referendum results when it does not agree with the policy.
The hon. Gentleman cannot compare an unconstitutional referendum in Catalonia, in which only 2 million people took part, with a constitutional referendum in Scotland and Wales organised according to legal procedures.
I am comparing not the two referendums but the reaction to those two referendums. On that point, I am probably on the same side as the hon. Gentleman.
The hon. Gentleman appears to be making light of the powers coming back from the EU. The Welsh and Scottish Governments were promised that the powers would go to those Administrations. The powers cover a huge number of areas. The Scottish Government reckon there are 111 returning powers, and the Welsh Government reckon the figure is 64. A huge number of areas are coming back here, rather than going to where devolved competence exists. While he is at it, will he tell us which way Monmouthshire voted in the EU referendum?
The hon. Gentleman knows the difference between a local authority area and a parliamentary constituency, so he knows there is absolutely no way of telling what the Monmouth constituency did. He will be aware that it was quite close in the Monmouthshire local authority area. Indeed, there was a very small majority in favour of staying in the European Union. He will also be acutely aware, as I am sure is the hon. Member for Torfaen (Nick Thomas-Symonds), that I represent 10,000 Labour-voting, traditionally working-class voters in Torfaen. I respect those voters, and they voted overwhelmingly to leave the European Union. Some people say I should not listen to such people, but I tell the hon. Member for Cardiff South and Penarth (Stephen Doughty) that those people mean as much to me as anyone living in Monmouth. I will represent their views, and they overwhelmingly voted to leave the European Union.
Is not the key point about the referendum not which regions or nations within the United Kingdom family voted one way or another but that we voted as a United Kingdom on the United Kingdom's membership of the European Union?
Absolutely. My hon. Friend makes an excellent point. Of course, the Government's whole purpose is to ensure there is a single market within the United Kingdom. We cannot have a situation where different nation states within the United Kingdom go off and do their own thing. If that were to happen, we would have exactly the problem that some Opposition Members complain will occur when we leave the European Union. That is what we are about today. If one judges the Government by their actions, rather than on the words of Opposition Members, one can see that, actually, this Government and this Conservative party have, over and again, given extra powers to the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. Sometimes they have been rather more enthusiastic in doing that than I would choose, but we saw it happen in 2011 and we are about to see a huge tranche of extra powers being handed over to the Welsh Assembly on 1 April 2018. The Conservative party has shown it is very willing to give extra powers to the devolved Parliaments and, to some extent, I suppose I agree with that approach. I sometimes think it is happening a bit too quickly, but it will certainly happen again. So I completely support what the Government are doing here today. They are doing what all those on the other side of the House are calling for: bringing about Brexit in a stable and controlled fashion that allows us to move forward with certainty. It is inevitable that this will lead to further powers going to the devolved Parliaments-it may not happen straightaway, but it will happen. Not one single power is coming back to London as a result of these measures; there is not one single thing that can be done by the Scottish Parliament or the Welsh Assembly today that they will not be able to do once this Bill is passed.
The hon. Gentleman was a Member of the Welsh Assembly for some considerable time. Is he saying that if he were still there he would not be arguing in Wales, in the Welsh Assembly, for the powers in the 140 distinct policy areas that have devolved responsibility, many of them in relation to the environment, to come back to the Welsh Assembly? Would he be happy for the Westminster Parliament to make those decisions on behalf of Wales?
I can say to the hon. Lady that that is exactly what I am saying to her. May I remind her that in 2003 I had an election leaflet that had the headline “No more powers for the Welsh Assemblyâ€ and I was given one of the biggest majorities of anyone in Wales? That is something to think about. So “yesâ€ is the answer to that question. This Government are doing a superb job. All sorts of people and the commentators will once again be, in the newspapers tomorrow trying to find little reasons to undermine this process. It is quite a complicated process, but I say from the bottom of my heart that I think these Ministers are doing a superb job, and they are being supported not just by their Back Benchers or all those who voted to leave the European Union, but by a majority of people in Wales, who also voted to leave the EU and are not being respected by the Labour party, Plaid Cymru and whatever is left of the Liberal Democrats. More power to them, and I look forward to joining them in the Lobby tonight.
What are the circumstances in which the right hon. Gentleman would vote for, and what are the changes he would have to see in, clause 11?
If the hon. Gentleman bears with me, I will take him through that in my speech. The fundamental point is that we must protect the interests of the Scottish Parliament. I say to the hon. Gentleman and his friends: are they willing to join us in the Lobby tonight to make sure that we do not have that naked power grab against the interests of the Scottish Parliament and the Scottish people, or will they simply be the poodles of the Prime Minister? Are they going to stand up for Scotland-Ruth Davidson has talked about that-or are they going to fail tonight to stand up for Scotland, which they said they would do when they got here?
Does the right hon. Gentleman accept that his tone and language in this debate are quite different from what his Ministers say when they come out of their meetings with UK Government officials? We should reflect on the progress that has been made to date, rather than continually try to find a political divide on this most important of issues.
A simple one-word answer: no. Amendment 72 is simple and straightforward. It seeks to ensure that all the devolved Administrations have a vote on approving clause 11 before it can come into effect. The principles behind the amendment are critical. Scotland, Wales and Northern Ireland have been told time after time that this is a Union of equals. There must be equality in the Brexit process and every corner of the UK must be heard.
We had a very good briefing, as we always do, from the Law Society of Scotland. It concludes, after several paragraphs of different suggestions on how this could be done more practically, that this is essentially a political decision. Does the right hon. Gentleman share that view?
Absolutely. When so many people have worked so hard over many generations and many decades to establish the Scottish Parliament, this attack on the competences of the Scottish Parliament by the Government is absolute bare-faced cheek. The Tory Members of Parliament from Scotland should remember what they said: that they are here to stand up for Scotland. Tonight they have their opportunity. Are they prepared to see this power grab against the Scottish Parliament? Are they going to vote to take powers back from the Scottish Parliament to Westminster? That is the simple choice that Conservative Members of Parliament face tonight. It is deeply depressing that the UK Government did not even bother to consult the devolved Administrations on the legislation before publishing it. Where is the respect when they cannot even talk to their colleagues in the devolved Administrations as they should do? I am sure that that obvious act would have saved many of the problems and headaches the Government now face over the devolved aspects of the Bill.
I was happy to put my name to amendment 72 because it is not about whether we want this Brexit Bill to go forward or not-a leaver or a remainer could support amendment 72-but about respecting the constitutional settlement and respecting the rights of the Welsh Assembly, the Northern Ireland Assembly and the Scottish Parliament.
I am very grateful for the hon. Gentleman's remarks. He is absolutely correct. Amendment 72 is about protecting the interests not just of the Scottish Parliament and Government, but of the Administrations in Wales and Northern Ireland. A point was made earlier about where sovereignty lies, but this House has to be very careful about going against the wishes and the democratic institutions that have been established in all the devolved areas. We play with that at our peril. I am delighted that amendment 72 has gathered support across the House. I sincerely hope-I plead with them-that the Scottish Conservatives join us and support it tonight. Let us all stand up with one clear and united voice, defending the interests of the Scottish Parliament. Do that tonight-stand up for Scotland. It is their moment to stand up and defend the devolution settlement.
Can the right hon. Gentleman please tell me one of the 109 powers that is not already implemented at a devolved level?
I am not quite sure what the hon. Gentleman is referring to. If he had listened to what the Scottish Government have said, he would know that 111 devolved competences are being interfered with. That is the salient point. When the Scottish Parliament was established, the Scotland Act 1998 defined matters that were reserved. Those matters that were not reserved were devolved to the Scottish Parliament. Areas such as agriculture, fisheries and the environment are fully devolved. In this Bill, powers over agriculture, fisheries and our environment are being taken back to Westminster. I say with all due respect to the Conservatives: do you want to trample over the powers that the Scottish Parliament has over these areas?
My sincere apologies, Mrs Laing. You are right to reprimand me, and I apologise. I am talking about the powers that the Government are taking back-the naked power grab that is taking place against the Scottish Government.
The Secretary of State and the United Kingdom Government have made it absolutely clear that, after Brexit, the Scottish Parliament will be much more powerful than it is today. Despite that the right hon. Gentleman continues to stand and spout those views. That is just not the case. Our job is to protect Scotland's place within the United Kingdom and within the internal market of the United Kingdom. Can he tell me the value to Scotland of the rest of the UK trade compared with the value to Scotland of trade with the EU?
My goodness, that really does demonstrate that they are not getting this. Purely and simply, it is about the powers that are being taken back from the EU that will sit here in Westminster. The Scotland Act is very clear about the areas that are devolved and the areas that are reserved. It comes to this fundamental point: are Conservative Members who have been sent here from Scottish constituencies going to defend the interests of the Scottish Parliament, or are they simply going to go through the Lobby tonight and speak up for London? Are they speaking up for Scotland or for London? That is the question that the Tories face tonight.
The right hon. Gentleman says that he wants to keep the powers where they are. Does he therefore accept that he is saying that the SNP wants powers to come back from Europe to Scotland, and for Scotland to become independent to shove those powers straight back to Europe again? Those are views that ensured that the people of Moray voted for a Conservative, rather than an SNP, representative this time.
I do not appreciate the hon. Gentleman's tone. We cannot get away from the simple fact that this legislation is trampling over the powers of the Scottish Parliament.
The right hon. Gentleman keeps saying that we are trampling on powers that Scotland has, and I just want to correct him. Regardless of what he thinks of the principle, the position-as a matter of law-is that these powers are now vested in the EU. The Supreme Court said in paragraph 130 of the article 50 case judgment:“The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such...restraints, withdrawal from the EU will enhance the devolved competence.â€Is the right hon. Gentleman saying that the Supreme Court is wrong?
The simple fact is that the Secretary of State and others have been asked on a number of occasions to name one power-just one-that will come back to the Scottish Parliament, and they have failed to do that. I do not know whether the hon. and learned Lady has ever read the original Scotland Act 1998, but she seems to ignore the fundamental point of all this, which is that the Scotland Act defines what is devolved and what is reserved. The only powers that are reserved are those expressed in the Scotland Act. It excludes fisheries, agriculture and the environment. I would think better of the hon. and learned Lady, who I know has a background in law, if she actually read the relevant documents. She would then understand exactly why people in Scotland and in Wales recognise this legislation for what it is; it is about taking back control.
On that point, does the right hon. Gentleman agree that, if another region of the United Kingdom were offered “regulatory alignmentâ€ outwith the rest of the United Kingdom, it would be a real trampling on the rights of the Scottish people and the Scottish Parliament?
Indeed, although I am not quite sure what the hon. Gentleman is referring to when he talks about regions, because we always say that this should be about an equality of nations within the family of nations of the United Kingdom. The issue of sovereignty has been raised in that context. We should remind the Committee that, although we often hear about parliamentary sovereignty, that does not apply in Scotland because the legal case that prejudices our position is Mac Cormick v. the Crown in 1953, which established that parliamentary sovereignty is a purely English concept that has no counterpart in Scottish constitutional history. It is the people of Scotland who are sovereign. A recent survey by 38 Degrees shows that 62% of Scots want the responsibility over devolved areas currently held by Europe to be transferred straight to the Scottish Parliament. That is the settled will of the people of Scotland.
Will the right hon. Gentleman give way?
I will give way later. The Scottish and Welsh Governments have tabled a number of key amendments to the Bill-amendments 164, 165, and 183 to 188-through SNP Members and Labour Members. I am delighted that these amendments have all been selected for debate today, and I will leave my friends to speak to the amendments in their own names. It must be recognised that there is deep disapproval from the devolved Administrations in Cardiff and in Edinburgh about not only how this legislation was drafted, but the extent to which it disrupts the functioning of devolved competences. During the referendum campaign last year, Scotland was promised all sorts of powers. The Environment Secretary told BBC Scotland that Scotland would get immigration powers with a leave vote. The former Member for Birmingham, Edgbaston promised Scotland powers over fishing and agriculture. But here we are, 17 months after the referendum. There are no new powers for Scotland. In fact, Brexit means Scotland losing powers. I can hear huffing from the Government Benches. I invite any Government Member to rise now and name one power-just one-that will come back to Scotland as a consequence of Brexit.
At the start of his remarks, the right hon. Gentleman sought to give us feedback from the meeting that I held with the First Minister and Deputy First Minister of Scotland and the Minister responsible for exit. If the right hon. Gentleman had been party to those discussions, he would know that all 111 powers were subject to discussion between the two Governments, and the two Governments will bring forward their proposals in due course. This power grab talk and this naming one power-it is pantomime. What this Government are involved in is the reality of negotiating a way forward on this matter.
I can hear Conservative cheering, but what a waste of time that intervention was. The question was very simple: name one power coming back to Scotland. Once again, the Secretary of State for Scotland, who is London's man in Scotland-far from being Scotland's man in the Cabinet-was not able to demonstrate that one single power is coming back to us. It is 17 months after the referendum, and we are no further forward. The clock is ticking, and every single power, as things stand, is coming back to Westminster. That is the reality. The Secretary of State, like his colleagues from north of the border, has failed to stand up and protect Scotland's national interest.
Is the right hon. Gentleman not just demonstrating how out of the loop he is with his own party, given that the Brexit Minister, Mike Russell, knows full well what those discussions have been about? Secondly, is the position of the SNP at Westminster different from that in Holyrood, because the SNP there has said explicitly that it agrees that agriculture and fisheries are areas where UK frameworks will be needed?
I am surprised at that intervention from the hon. Gentleman. I expressed right at the outset of my speech that we recognise that progress was made, but that progress has not been sufficient to justify the SNP supporting this Bill tonight. The whole point about our position is that we want to see frameworks in place, but we can move forward on that only when the UK Government are prepared to negotiate. Why was there a six-month period when the Joint Ministerial Committee did not meet? If there is any blame in this matter, it lies with those on the Government Benches. I can tell the hon. Gentleman that there is not a fag paper between the position of the SNP on these Benches and that of our colleagues up the road in Holyrood. We are united, which is more than can be said of the Conservative party, because Ruth Davidson is delivering a very different message from the one that is being delivered by the Conservatives down here. Ruth Davidson recognises the threat to Scotland of being out of the single market and the customs union. The Scottish Conservatives would serve the interests of the people of Scotland if they recognised that there is an economic threat from being outwith the single market and the customs union.
If I may say so, I have sympathy with the point that is being put across-that the way in which the Bill is drafted seems to be excessively stark and to fail to take account of the sensitivities of the devolution settlements. However, I am afraid I cannot join the right hon. Gentleman on the rhetoric, because, ultimately, as a United Kingdom, which is what we are, there has to be flexibility in reaching a sensible way forward in the light of a change in circumstance. If I may gently say so to him, because I participated actively in the debates on the devolution legislation of 1997, it was always acknowledged then that devolution was not just a one-way street; for it to work, we required that flexibility of dialogue between Cardiff, Edinburgh, Belfast and London to reach solutions and not just to get anchored on principles. While I am respectful of the point he is trying to make, I suggest to him that that might be a sensible way forward.
I thank my right hon. and learned Friend, if I may call him that, for that intervention. I always listen carefully to what he has to say, and I think that, in some respects, he makes my point. Way back last December, the Scottish Government published a paper about achieving compromise, and that is the position we have always taken. We fully recognise that we have to get to a situation where we can compromise and where we need to have joint frameworks. The nub of this argument is where the powers should lie when they come back from the EU. It would be far better if they came back to the Scottish Parliament, so that we could agree a framework; as it is, the UK has grabbed the powers and is failing to discuss these matters adequately-not just with the Government in Edinburgh, but with the Government in Wales. The Bill returns powers solely to the UK Government and Parliament, imposing new restrictions on devolved legislatures. Scotland is getting used to Labour and Tory politicians promising all sorts of things during referendums but never delivering them. It is astonishing that just three years ago the Conservative and Labour parties were telling the people of Scotland that the biggest threat to the economy and EU citizenship was an independent Scotland-“Vote no to protect the UK's EU membership!â€ Let us think about that for a minute. Now we are losing our EU membership. The economy is already seeing the effects, inflation is up and the fall in the pound and living standards has been the consequence. The reality is that Brexit is making us poorer before it even takes hold. Our prosperity is under threat. Meanwhile, the UK Government are attempting the biggest power grab since 1999.
I am grateful to the right hon. Gentleman, whose amendments I will support this evening; I believe the SNP will be supporting Labour's. In that spirit of consensus, may I probe a little further into what he is saying about the independence referendum? I have still to find anyone who supports independence who can explain to me how they think the EU single market is such a good thing but the UK single market is not.
The answer is very simple: we would not be leaving the single market of the UK. We are hoping to protect the interests of the people of Scotland. The simple matter in front of us at the moment, as identified by the Fraser of Allander Institute, is that we run the risk of losing 80,000 jobs in Scotland if we are outwith the single market and the customs union. A decline in wages of £2,000 per person-that is the reality of the threat. We are seeking to protect the interests of the people of Scotland.
Will the right hon. Gentleman give way?
Is the right hon. Gentleman genuinely surprised that there has not been progress on some of the reasonable amendments that have been tabled on a cross-party basis, given that the Secretary of State for Scotland himself said to the Scottish Affairs Committee that“it may be that some amendments can be accepted with a little bit of modificationâ€? I would have hoped that by this stage the Government would have made more progress on some of the very reasonable amendments that have been tabled.
The hon. Gentleman makes an important intervention. We are 17 months on from the vote and we are at a very important stage of this Bill. We are trying to negotiate on the basis that we recognise the threats that we are facing. It is incumbent on the Government to recognise that we have to get agreement between the Government in London and the Governments in Edinburgh, Cardiff and Belfast. It saddens me that we are having eight hours' debate today and will have eight hours' debate on Wednesday, and the Government's approach just seems to be that they are listening. How long does it take them to listen, and how long does it take them to respond to the fact that they are trampling over the powers of the devolved Administrations? The Government in Edinburgh and SNP Members are making it absolutely crystal clear that we do not want to be in the position of a legislative consent motion being withheld. We want to make sure that we can strengthen this Bill to the advantage of everybody, but we need to get the position from the UK Government that they are prepared to respect the Administrations in Edinburgh, in Belfast and in Cardiff.
There is a lot of scoffing on the Government Benches. Three Committees of this House have heard evidence about clause 11-the Scottish Affairs Committee, the Exiting the European Committee, and the Public Administration and Constitutional Affairs Committee-and the weight of that evidence from a number of senior, distinguished lawyers from both north and south of the border has been that there are very real concerns that clause 11“drives a coach and horses through the devolution settlementâ€. Those are not the SNP's words but the preponderance of evidence heard by Committees of this House.
My hon. and learned Friend makes a strong case. That is why the Government should listen to her, and to the other reasonable voices that have spoken this afternoon and at other times. The Government have to recognise that they are playing with the powers that have been established under various Scotland Acts, and that is not right. The evidence is there from academics and from the Select Committees of this House that have made judgments on the matter, and the Government have a responsibility tonight to reflect on it. They must not push the matter into the long grass and say that they are listening; they have to show that they are prepared to take action. I will sum up, because I know that many others want to speak. With the overwhelming evidence from experts in the legal profession showing how flawed clause 11 is, the best thing the Government can do is to accept that the Bill needs to be fundamentally amended. They can do that this evening, by accepting the joint Scottish and Welsh Government amendments. Common frameworks will not prevent the imminent constitutional crisis that clause 11 will create. The Government must change this Bill.
Would the hon. Gentleman like to tell us how interim interim is?
If the hon. Lady will bear with me, I am coming on to talk about that. Clause 11 provides that the 111 powers that I have mentioned will be released to Scottish Ministers on a case-by-case basis once UK Ministers are satisfied that it is safe to do so. There is no timescale for that, and the process is unilateral. Under clause 11, the powers, once repatriated from the EU to the UK, are for UK Ministers to exercise or to devolve, as they see fit.
The hon. Gentleman is pouring some scorn on the phrase “power grabâ€. He might be interested to know that the first person to use the words “power grabâ€ in relation to the process was not a member of the Scottish National party, but the former Prime Minister, Gordon Brown.
The hon. and learned Lady and I perhaps have different definitions of what is interesting. Ostensibly, amendment 164 and the consequential amendment 165 to schedule 3 are in the names of Opposition Members, but they have in fact been tabled on behalf of the Scottish and Welsh Governments. This distinction is important, and Ministers should be mindful of it. The amendments would turn clause 11 on its head, repatriating all 111 powers directly to Holyrood. Brexit must be delivered in a way that respects devolution, but it would plainly be contrary to the interests of the United Kingdom as a whole for the devolved Administrations in Edinburgh or Cardiff to be able to use powers formerly held at EU level to pull apart Britain's three centuries old internal market. The fact that Britain is a single employment market, with no barriers of any sort on the movement of people, goods or services is core to the case for the Union.
The hon. Gentleman is a very assiduous member of the Scottish Affairs Committee, for which I am grateful, but surely he must agree with, recognise and accept the basic premise that clause 11, as currently constituted, is unacceptable and needs to be significantly reformed?
I absolutely agree, but the point is that the amendments proposed by the Scottish and Welsh Governments go far too far. There is some middle ground, on which, if the hon. Gentleman will allow me, I will set out where I believe we can get to.
Some of the hon. Gentleman's Conservative colleagues have proposed their own amendments on other areas of the Bill. Why has the Scottish Conservative group of MPs not tabled any amendments to clause 11 if they share his concern?
For the simple reason that there is another JMC meeting on 12 December, and we do not believe it is right to prejudge or prejudice the outcome of those negotiations. There is going to be an agreement, and it is much better to allow such an agreement to be reached and incorporated into the Bill. Much has been devolved since 1998, but nothing that jeopardises the UK's single internal market. It would be in the interests of neither consumers nor producers for product safety and consumer protection rules to be different across the nations of the United Kingdom.
Will the hon. Gentleman give way?
I am going to make some progress. These rules are now uniform throughout the UK and many, but of course not all, should remain so after Brexit. Amendments 164 and 165 go too far and are dangerous to the Union. Frankly, I am startled that Scottish Labour-only one Scottish Labour MP is here-and Scottish Liberal Democrats are prepared to support these amendments, which could so fatally undermine the integrity of our Union. The Scottish Conservatives will not support them. However, I want to make it clear that my vote with the Government should not and must not be taken as an acceptance of clause 11 as it stands.
I am astonished. Does the hon. Gentleman not agree that continual discord, arguments about the constitution and a perceived threat to the powers of the Scottish Parliament are more of a threat to the United Kingdom than anything proposed in any amendment in Committee today?
I thank the hon. Lady for her intervention, but I do not agree. I think that amendments 164 and 165 are fundamentally dangerous to the Union, and it would be dangerous for the integrity of the Union to pull them into the Bill.
Does the hon. Gentleman not accept that the principle of the Scotland Act 1998 was that what was not reserved was devolved? These powers could easily go to the devolved nations, which could then sit around the table. Their voices would then be heard properly in any national framework, and they would not simply be told what it would be.
If the hon. Lady was listening, she will have heard me say that I agreed that that was the purpose of the 1998 Act. I am coming on to say explicitly that clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version. However, I do not consider now to be an appropriate stage in the process at which to demand a new draft to be brought before the House. I fully accept that this issue is linked to active conversations tacking place between Governments, and I share my hon. Friends' concerns about the fact that introducing new drafting to reflect where I believe we need to, and should, end up-indeed, where we will more likely than not end up-would pre-empt what are now and are expected to continue to be fruitful negotiations between the UK and Scottish Governments. I am prepared at this stage to give the UK Government the time and opportunity to take forward these matters, on the clear understanding that both sides need to move from where they now are on clause 11. We are beginning to see movement: we can see it in the constructive JMC (EN) talks, the next meeting of which will be on 12 December, and Scottish Conservatives stand ready to help broker a compromise. In our view, the impasse is readily solvable. Most of the 111 powers are technical and regulatory.
I ask the hon. Gentleman to seriously consider what he has just said. He said that most of the 111 powers are technical and regulatory. Is he aware that the list affects huge swathes of our justice system in Scotland? Does he consider our devolved justice system and separate legal system to be simply technical and regulatory matters?
They are not on the list.
They are on the list. You should read it.
But not in the form you have said.
Order!
What action will the hon. Gentleman take if amendments 164 and 165 are not passed and his demands do not come to pass? Would it not be more sensible to just support the amendments?
No, because I do not believe that amendments 164 and 165 provide the position in which I think clause 11 could and should end up. I have been very clear-I said this on Second Reading and I have said it again tonight-that I will not support a Bill that undermines devolution and does not respect the integrity of the Union. I do not think I could have been any clearer to Ministers. I consider my argument to be reasonable, pragmatic, achievable and, crucially, acceptable to both of Scotland's Governments. There is much at stake. If the steps I have outlined are not completed, the consequences are quite simple: LCMs will not be granted by the devolved Administrations and the other place will not pass the Bill. I genuinely believe that that is not a situation in which any of us want to find ourselves, and I look forward to receiving the necessary assurances from the Minister in his closing remarks.
Will the hon. Gentleman give way?
I will be happy to take the hon. Gentleman's intervention if he tells us whether he is standing up for the interests of Scotland or the interests of his Chief Whip.
That is absolutely the case. That is why there are 13 Scottish Conservative MPs and only seven Scottish Labour Members. Indeed, a number of my colleagues are in their place on the Conservative Benches, whereas the hon. Gentleman seems to be the sole Scottish Labour Member in the Chamber. I think that the Scottish Conservatives are doing well in standing up for Scotland.
Is my hon. Friend aware that the Taoiseach, Leo Varadkar, has said:“I am surprised and disappointed that the British government now appears not to be in a position to conclude what was agreed earlierâ€-
Thank you, Mrs Laing. If I may, I will respond to what the Taoiseach said just by saying I am surprised that he is disappointed, but not surprised that he is surprised.
With specific reference to the amendments, particularly around the importance of joint ministerial consultation on a number of matters, does my hon. Friend wonder, like me, whether the First Minister of Wales, the First Minister of Scotland and indeed the Mayor of London, whom we have heard speaking out, were in any way consulted on the potential terms that were being offered in the negotiations in Brussels today?
That is my point about the constitutional crisis we are in. It seems that the only way to follow the discussions between the UK Government and the EU is on Twitter. Journalists seem to know what is happening before hon. Members. We are getting a running commentary from the Government through press releases, but there is absolutely no proper consultation with the devolved Administrations.
I will give way to my friend from the DUP, because I think he might have something interesting to say.
I am glad that the hon. Gentleman thinks I might have something interesting to say as I know that he always has something interesting to say. On the general point, I do not think that anybody should get their news constantly from Twitter. Specifically on the amendments, is not the key point that we must show discernment and skill and not fall for the spin, whether that comes out of Dublin, London or Brussels? Let the negotiations run and let us see what comes out of them at the end.
I could not agree with the hon. Gentleman more, but why not bring some of that to the House, rather than leaving it for commentary on Twitter? Journalists following the Prime Minister seem to know much more about what is happening than anybody in the House. If the Prime Minister were to fly home-Ministers can get back from foreign countries very quickly, as was demonstrated over the summer-come to the House and let us know what was going on, we would not need to stand here and speculate. The hon. Gentleman made an intervention about regulatory harmonisation. I think he let the cat out of the bag when he mentioned that the DUP was firmly against regulatory harmonisation in the island of Ireland, and that is why this is so important across the rest of the UK.
Has my hon. Friend noticed that the Minister who has apparently been briefing Conservative Members has just appeared in the Chamber? Perhaps he could give us some answers about what has been going on in Brussels today.
I am grateful to you, Mrs Laing. I apologise to the Committee for digressing, but these are incredibly important matters-and actually they are directly connected to my amendments, because they about keeping the devolved Administrations informed and involved in the process. The hon. Member for East Renfrewshire said he was seeking reassurances. What we have seen since lunch time should give him cause for concern that no assurances will be forthcoming, which is why we must put in the Bill the requirement that the Government keep the devolved Administrations properly informed. This is about not just the devolved Administrations, but the people they represent.
Does the hon. Gentleman not accept that his amendments would allow every single one of the 111 powers to be immediately devolved from day one, with no constraints, and that they would therefore enable all the devolved Administrations to do whatever they wanted, meaning that we could have divergence from day one? He believes in continuity and maintaining similarities between the four components of the UK. Does he not understand why his amendments would be dangerous to the integrity of the UK's internal market, given that from day one the four component parts of the UK could go off and do whatever they wanted?
I will answer that directly when I talk about the Law Society of Scotland's possible options. We could devolve everything and then put agreements in place, if the JMC and intergovernmental relations worked properly. There are therefore several other options, and it is not just me saying that, but many of the organisations that have commented on the Bill.
Will the hon. Gentleman clarify his amendments? Is he suggesting that some parts of the UK should be treated differently from others? Should London have a different and better deal than, say, Cardiff, Edinburgh or Belfast? Should not we all, as UK subjects, be treated the same?
I agree that all parts of the UK should be treated similarly, which is why I have always championed the UK's staying in the single market and the customs union. That would allow us to leave the EU while keeping the regulatory harmonisation required-the very regulatory harmonisation that the hon. Gentleman railed against just a few moments ago-and keeping the UK single market operating within the EU single market.
On the question of where power actually lies, we know that many farmers voted leave, yet I know, having attended a National Farmers Union meeting on Friday, that the idea of farming and hill farming in Scotland being controlled from here is something they consider anathema. Given the failure to pass on the convergence uplift in 2013-14, they are frightened about farming powers being here.
These are complex discussions and issues, but the key principle is that any power devolved under schedule 5 to the Scotland Act 1998 should be devolved. No one is saying that everything should be devolved at one minute past midnight-or whenever we leave the European Union-but these discussions must take place by means of intergovernmental processes, and the principle should be that there should be devolution at the point at which powers come back from the EU, when it is possible for that to be done.
Does the hon. Gentleman accept that if the powers are devolved without a framework having first been established, whether we are talking about a European or a UK single market, that principle could not be applied, because powers would be devolved to four different Administrations who could then make whatever regulations they wanted? How does the hon. Gentleman marry that with the need-the recognised need, as he has pointed out-for a UK single market? Surely the framework should first be set, with the remaining powers then devolved to the Assemblies.
But that assumes that we automatically start from the position of hoarding the powers here at Westminster, and I disagree with that principle. The principle must be that when a power is currently devolved to the devolved Administrations, that power should remain devolved-it is very simple. I accept that Members might not agree with that principle, but it is fairly sensible. My amendment 164 would merely remove from section 29(2)(d) of the Scotland Act 1998, on legislative competence, the words “or with EU lawâ€, meaning that everything else would have to be compatible with the Act.
I give way to my parliamentary neighbour.
The hon. Gentleman mentioned the hoarding of powers at Westminster. One of the biggest problems that I see with clause 11 is that, ultimately, Scottish Ministers will not be able to amend retained EU law, potentially for an indefinite period, although UK Ministers will. That is completely against the word and spirit of the devolution settlement.
It is against the spirit of the devolution settlement, but it is also against the spirit of the referendum that we heard about earlier. The Scottish people, the Welsh people and the Northern Irish people voted for devolution. There is no doubt that clause 11 is using a sledgehammer to crack a nut. There are many other ways of legislating that would allow a transition on day one that would respect the devolution settlement. The Law Society has put forward such options. As the leader of the SNP said, the way in which the Government are using clause 11 is clear. There is no sunset provision and no timetable is attached. There is no list of powers, and there is no indication of when certain powers should be given priority. There is no commitment to intergovernmental working and there is no real commitment to devolution. We were diverted to today's discussions in Brussels because that is part of the disrespect for the devolution settlement in this country, which is why the process has become so difficult.
Does the hon. Gentleman also acknowledge the disrespect that the Taoiseach has shown for the people of Northern Ireland? He has said that he now speaks for them, but the Democratic Unionist party and other elected parties do not. Is it not time that he knew that when it comes to Northern Ireland, democracy and the political process, the power lies here in the Chamber? It certainly does not lie with Leo Varadkar, the Taoiseach of the Republic of Ireland.
We may be being diverted from the point again, but I think that the Committee, the country and anyone who happens to be watching our proceedings will see that the three members of the Democratic Unionist party who are sitting in the Chamber are the real Government. They are dictating the terms of Brexit-and the hon. Member for Strangford (Jim Shannon) is doubtless the de facto Secretary of State for Exiting the European Union-in terms of the power that they have over the Prime Minister. As I said earlier, it is clear that between courses this afternoon the Prime Minister has gone from a negotiated agreement to a set of texts to throwing it all in the bin alongside any leftovers from lunch. It is clear that the DUP-10 Members of Parliament from Northern Ireland -are holding the Government to account and holding them by the neck, because it is much more important for the Prime Minister to hold on to power than it is to do what is the best interests of all our nations.
May I gently point out to the hon. Gentleman that at least there are three DUP Members in the Chamber, whereas by my count only two Scottish Labour MPs are present? The hon. Gentleman talks a very good game for defending the Union, but the fact is that the leader of the SNP in Scotland, Mrs Sturgeon, and the Mayor of London have been very quick to start talking about how they would like divergence and special deals, which would completely wreck the union of the United Kingdom.
I normally say that I am grateful for interventions, but in this instance I will refrain. I do not think that the question of how many members of how many parties are in the Chamber at any particular time is relevant. What is relevant is ensuring that Members are in the Lobby tonight. I hope that 13 of the hon. Gentleman's Scottish Conservative colleagues will go into the Lobby with us to change the Bill, because that is what is important. This is about voting, not about talking and then doing nothing.
The hon. Gentleman is giving a very good speech, but he is not giving a speech in support of his own amendments; he is giving a speech in support of a middle ground between the positions of the UK Government and the Scottish Government. Does he not understand that his amendment would devolve everything from day one, with no constraints, thereby enabling all four constituent parts of the UK to do whatever they wanted? That is not the Labour position, and it is bonkers.
It is funny that the hon. Gentleman now calls my position bonkers after seeking assurances that amendments 164 and 165 would be carried by the Government to ensure that clause 11 became much more appropriate. Perhaps he will intervene again and tell us exactly what he meant, because I am confused. He seems to want to support my amendments, not to support my amendments, to seek assurances, to vote with the Government, and to back Ruth Davidson. I am not sure where he stands.
The hon. Gentleman does not seem to have read his own amendment. I do not want either clause 11 as it stands or clause 11 as suggested by the Scottish and Welsh Governments, because both go too far. We need a middle ground, and that means knowing what the position will be in relation to powers. We do not seem to be too far apart, but the hon. Gentleman is intending to vote for something that he is not arguing for.
I do not wish to be disrespectful to the hon. Gentleman. I know that he is new to this place, having been elected in June 2017. However, he could have tabled his own amendment to do what he wants to do. He has the cheek to stand in the Chamber and criticise my amendments, and say that he wants to seek assurances from his own Government, but he does not have the nerve to table his own amendment. That highlights one aspect of the debate. Scottish Conservative Members are happy to bluff and bluster in the Chamber, straight from the Alex Salmond playbook, but when it comes to putting their money where their mouths are, they will walk into the Lobby with the Government in order not to deliver what they fundamentally believe should be delivered. I look forward to the hon. Gentleman's tabling a raft of amendments on Report to ensure that clause 11 becomes a much better clause, and I look forward to his being influential with Ministers to ensure that those amendments are carried.
Is it not the case that the reason why my hon. Friend and I-and, indeed, a number of Members on both sides of the House-had to work together to table the amendments, with the support of the Welsh and Scottish Governments, is that the Bill is deficient in so many areas, and needs to be fixed in so many areas before we can even consider allowing it to proceed, and before the Welsh and Scottish legislatures will give their consent?
Absolutely. I think that it comes down to the word “trustâ€. Many reports on the Bill come down to whether or not the devolved Administrations trust the UK Government to deliver what they are attempting to deliver in the Bill, and I do not think we can trust them to do that. The Law Society of Scotland has argued that the Bill should be revised because clause 11 has no transitional basis: it is an open-ended provision that could last forever. We could see Ministers in Cardiff, Edinburgh, Belfast and, indeed, Whitehall arguing about the minutiae of the detail rather than getting on with the job in hand, for political purposes. We have seen in the House, in respect of every single aspect of devolution, that when it comes down to the politics, it is the people who lose out and the politics that try to win out. We should be very wary of that while we are debating this Bill.
I thank my hon. Friend for giving way again. He is being very generous. Does he agree that this is relevant to an example that has been set in relation to so many issues, including the issue of the Agricultural Wages Board? We do not want case after case to end up in the Supreme Court, with vast amounts of taxpayers' money being spent and the UK Government fighting the devolved Governments over matters on which they have the clear competence.
The hon. Gentleman keeps referring to the single market of the United Kingdom. Does he agree that what we have in the UK is a unitary market, because we do not have four separate states, but instead have a union of four separate nations? What the EU has is a single market, which is a regulatory alignment of sovereign states. We do not have that in the UK; we have a unitary market. Will the hon. Gentleman use his language more carefully, please?
That is legal semantics. I can buy an animal in Edinburgh and sell it in London, crossing the border with it in the back of my car-not that I would do so, as that would probably be illegal, but this is just to highlight the point-and do that in one single market, and not have any customs checks or transfer paperwork, apart from the legal paperwork required, and I could also do that across the EU. Outside the legal semantics, the point I am making is that the SNP says the EU single market is a good thing, and I agree, but says the UK single or unitary market is a bad thing, and I disagree. We also have the Conservative party saying that the UK single market is the most wonderful single market in the world, and I agree, but it is also saying that the EU single market is a bad thing and we must come out of it, but we can keep all the benefits of that at the same time.
The crucial difference between the single market and the unitary market is that in the single market there are at present 28 sovereign states who meet together to make their rules from the top down, whereas in the UK's unitary market the rules are imposed from the United Kingdom. This supports the hon. Gentleman's argument, because his argument, which I agree with, is that these frameworks across the UK should not be imposed from the top down, but should grow up organically from the bottom.
We have just had a bombshell there; the hon. and learned Lady has just told us that she wants to stay part of the UK. That is what we can surmise from that intervention, and I completely agree with her that the best way for Scotland, and Wales, to thrive is to stay part of the UK. Indeed, in my view, the best way for the UK to thrive is to stay part of the single market and customs union of the EU, and all of these issues would therefore fall away, because we would not need clause 11, because we would not need the framework in place to be able to put UK frameworks together, because we could stay within the frameworks that are already in place. It is strange that we will spend a significant amount of time in this Chamber, in the Committee Rooms of this House, and in all the devolved Administrations discussing frameworks that we already currently have. The Government strategy is that they want every benefit they currently have from the EU while not being a member of the EU. I suggest that if the Government want to achieve that, they should stay in rather than wrench themselves out. That would resolve all the problems, and would have saved the Prime Minister lunch this afternoon, because they would have had a very straightforward solution to their problem. I will not press my amendment to a vote if those on my Front Bench are going to press amendment 42, because they are very similar in nature. My Front-Bench colleagues' amendment is much more technically efficient than my proposal, and we know that technically ineffective amendments tend to be criticised. I will therefore support my Front-Bench colleagues' proposal, and finish by saying that the simple solution for Northern Ireland, Scotland and Wales would be to stay in the single market and the customs union.
There was a referendum. It was the will of the people.
I am interested in the point the hon. Gentleman is making, but is it not the case that the UK Government consulted very little with Members of all parties across the House during the preparation of this Bill after the referendum? Does he agree that that was a massive mistake?
The hon. Gentleman has been in this House for quite some time, and he should be used to that by now. That is the way in which Governments have tended to behave. Yes, we have tried to improve things. We now have pre-legislative scrutiny, for example. I did not vote for the Lisbon treaty, which put article 50 into the treaties. I did not vote to have a two-year time limit on the negotiations on leaving the European Union. I suspect that the hon. Gentleman did vote for the Lisbon treaty, however, so I think he should take more responsibility than I should for the time constraints under which we are now operating.
What is unusual about this Bill is that it followed a referendum that means we are going to leave the European Union, and there are splits in both the major parties on this issue. The right approach would have been for the Government to consult much more widely on how this legislation should be taken forward. The reason that it is in such a mess at the moment is that the Government are allowing a small coterie to dominate the conduct of the process, rather than consulting the House as a whole.
I do not accept that the Bill is in any kind of a mess. I think that we ought to keep the effects of clause 11 in proportion. From the perspective of the Government-and, in reality, from the perspective of what actually happens in Scotland, Wales and Northern Ireland-the clause is a status quo measure. The powers, while not reserved by the Scotland Acts, were reserved by virtue of our membership of the European Union, so there is no power grab. If the hon. Gentleman wants me to, I can quote from the evidence that the Committee received from Mr Nigel Smith. He was the chairman of Scotland Forward, which ran the pro-devolution campaign in 1997. He stated:“Nobody who voted for the Scottish Parliament exactly twenty years ago need worry-there is no ‘power grab' underway.â€We did receive countervailing evidence. Incidentally, the report we published last week is an interim report. We produced no conclusions or recommendations, but we wanted to surface and discuss many of the pieces of evidence that we have received and make them available for this debate.
The main conclusion of Alan Page's work, with which I am sure the hon. Gentleman is more than familiar, is that clause 11 proposes a hierarchical version of devolution whereby this place has all the central powers. I am surprised that the hon. Gentleman does not know that, because that was the main conclusion. Clause 11 creates a hierarchy of devolution under which, for the first time, this place has control in asserting its sovereignty, and Scotland would fall far under the radar. I am surprised that he is not familiar with that work.
The hon. Gentleman will be surprised no longer, because my next point is that the manner of clause 11 reflects a lack of sensitivity on these matters. Clause 11 suggests that there will be no time limits on the retention of powers and no process for the discussion of how powers should be handed over. There is only consultation through the JMC, which meets sporadically, and there is no statement of long-term aims for where the powers should eventually lie. Returning to the hon. Member for Edinburgh South and his comments about trust, we should be asking how we can build some trust. The great gap in the devolution settlement, as it exists, is that it is based on a binary notion of what devolution means: power is either reserved or devolved. In fact, most decentralised systems of government have shared competences. The EU itself operates substantially on the basis of shared competences and, paradoxically, it is leaving the EU that is exposing the flaws in the devolution settlement. There are so few mechanisms for dealing with shared competences-virtually none.
Does the hon. Gentleman agree that one of the functions or strategists that can deal with this matter is the Joint Ministerial Committee?
I do agree, but the number of times that the JMC and its sub-committees have met formally is few. Months can go by with no meetings, and then a Whitehall Minister will say, “Ooh, we should have one.â€ That does not inspire confidence. Perhaps the JMC should have fixed diarised formal meetings every year, because there would be things to discuss whether or not a Minister of the Crown here actually thinks there might, and that would give people an opportunity to get to know each other better.
Does the hon. Gentleman also agree that diarised meetings and more interaction might lead to confidence and agreement between the Governments?
I could not agree more, but I hope that the hon. Gentleman will acknowledge-I am not being accusatory-that this has been a failure of previous Governments as well as this one. When the Select Committee visited the Welsh Assembly and the Welsh Government during the 2010 Parliament, First Minister Carwyn Jones actually complained to us, perhaps with more rhetoric than was justified, that he had been trying to get a meeting with Prime Minister David Cameron for months and months-more than a year-but had not been allowed to have one. We need fewer excuses for people who want to be destructive and more confidence that meetings will take place and that they are valued by all parties.
Is it my hon. Friend's view that the mechanisms that determine such communication should be established by statute?
I have an open mind on that, and I have fiddled around with my amendments, which have not appeared on the order paper today, to see whether we can find a way of doing that. I do not know whether this is the right Bill through which to do that-probably not-but such things are statutory in other decentralised systems. There clearly needs to be something much more formal, but we should perhaps experiment without statute first to see whether it is necessary. My Committee took evidence from one civil servant and a former Speaker's Counsel who said, “It has worked very well for the past 300 years, so why do we need statute?â€ but that does not recognise that we now have competing political centres with, I repeat, competing narratives about what the constitution actually is. SNP colleagues talk about the natural sovereignty of the Scottish people, but the legal constitutional reality is that the Queen in Parliament in Westminster is still absolutely sovereign. Those things need to aired, discussed and understood.
Further to that point, the Scottish Government have consistently made it clear that they cannot support the Bill as it stands, so if the UK Government do not vote for amendment 72 tonight, would that not render the Sewel convention completely pointless and not worth the vellum it is written on?
I hear the hon. Lady's impatience, but we need to be more patient. We are not completing the consideration of this Bill this evening, and I am encouraged by the work done by the First Secretary of State, who chaired the last meeting of the Joint Ministerial Committee and seemed to be drawing people together around some agreed principles for how joint frameworks might be approached. We all want to see that, so let us hope that that work will continue.
The hon. Gentleman was mildly critical of the Welsh First Minister for using rhetoric, but the rhetoric in that relationship came from Prime Minister David Cameron, who said that he wanted to follow a respect agenda but then failed even to have a meeting with the First Minister. May I also correct the hon. Gentleman on something? Ministers actually know each other very well at the moment and met extremely frequently prior to the introduction of this Bill. The problem is that UK Ministers ignored the advice that they were getting from both Scottish and Welsh Ministers, which was that something like clause 11 would be utterly unacceptable.
The better we know each other, the more we will forgive each other for the rhetoric. That is what I found when my Committee went to Edinburgh on a semi-formal visit. The hon. Member for Inverclyde (Ronnie Cowan) and I, as Chairman, had some open and frank discussions about some difficult issues with people I had never even met before, but we of course found that there was lots of common ground. My next point is that there are no inter-parliamentary arrangements. We had to scrabble around for a bit of budget to do the trip. We found it in the end, but there needs to be a habit of people in this Parliament interacting much more openly and frequently with our counterparts in the other Parliaments. For example, the Environment, Food and Rural Affairs Committee and the Business, Energy and Industrial Strategy Committee have competences that are shared by Committees in different Parliaments. Those Committees should be meeting regularly together. Another suggestion worthy of consideration is that there should be some formal inter-parliamentary council in the United Kingdom to allow representatives of all four Parliaments to meet on a regular basis on some kind of neutral ground.
The Good Friday/Belfast agreement set up many inter-parliamentary institutions, both east-west and north-south. The hon. Gentleman talked about trust. How does he think that trust has been helped by what we saw this morning, with the Government saying there would be a deal on the border in Ireland and the Prime Minister then having to come out of lunch because the DUP either had not been consulted or had not agreed to the arrangements? What does it do for both Unionism and nationalism in Ireland when such things happen? Frankly, it looks as though the Government are in chaos, do not know what they are doing and, in pursuing it, are undermining the whole peace process in Northern Ireland.
Sir David, am I to be tempted to enter a debate on today's negotiations, or should we wait until tomorrow, when perhaps someone will come to tell the House something about what has been going on? A formal inter-parliamentary council that meets on a regular basis would be another opportunity for parliamentarians to understand each other better.
Will the hon. Gentleman give way?
I must press on, but I will give way once more.
Does the hon. Gentleman acknowledge that there is an inter-parliamentary council? The British-Irish Parliamentary Assembly, which obviously includes the Government of the Republic of Ireland, provides an opportunity for parliamentarians to get to know each other. Perhaps it would be useful if, as the Chair of the Select Committee on Public Administration and Constitutional Affairs, he were to be a member of that Assembly. On today's issues, does it not show that we have a Prime Minister who is in office but not in power and a DUP that is in power but not in office?
I am endeavouring to raise the tone of this debate, and obviously I am not succeeding with certain Opposition Members. My final suggestion goes to the heart of what clause 11 is about. I mentioned that, in previous discussions about devolution, there has always been a Silk commission or a Calman commission. There has always been a body that has deliberated, drawn out the more controversial politics and tried to make the discussion more objective. I wonder whether there is a case for the Government convening some kind of standing commission, under the scrutiny of a joint group of parliamentarians, to dispassionately look through the powers returning from the EU that intersect with the devolved Parliaments and Assemblies in order to determine what powers should lie where, both immediately as we leave the European Union and in the longer term. At the moment, I am afraid my criticism of clause 11, as it stands, is that it does not give any assurance about process or much assurance about consultation, time limits or sun-setting. It just sets out this static proposal.
Will the hon. Gentleman give way?
I will not give way again. I have said everything I want to say. My Committee is continuing its inquiry. If any right hon. or hon. Member wants to have their say, they can always submit evidence to our Committee.
On a point of order, Sir David. I am not sure whether you were in the Chamber earlier, but Mr Speaker made it clear when asked that the Prime Minister intended to make a statement to the House tomorrow about the negotiations and discussions she has been having with the DUP and Europe. I gather that Downing Street is notifying the press, not this House, that there will be no such statement tomorrow and that the Prime Minister does not intend to make a statement. Is there any way you can make sure that Mr Speaker is aware of this and, for that matter, that Downing Street is fully aware that if we are taking back control-I thought that was the whole point-this House should be kept fully and appropriately informed of the negotiations at every stage?
It is a pleasure to follow the hon. Member for Harwich and North Essex (Mr Jenkin), who I commend for his thoughtful speech and for how his Committee has sensitively considered some of these issues. We have seen the interim report, and I look forward to the full conclusions. My hon. Friend the Member for Inverclyde (Ronnie Cowan) is a member of the Committee, so the hon. Member for Harwich and North Essex has more than able deputies to back him up. I rise to support the amendments variously tabled on behalf of the Scottish and Welsh Governments in the name of my hon. Friends and other hon. Members. The key point is that where we are going requires cross-party attention, support and consensus, but it also requires cross-institution support. The efforts to try to resolve some of the difficulties in clause 11 not just in this Chamber but, to give them credit, in Committees, in the other place and in the Scottish Parliament have to be noted. We are starting to see progress on concluding some of these conversations and discussions. This debate will help us to move things on.
Does the hon. Gentleman agree that the danger of clause 11 is that it seeks to replace Scotland's relationship with the EU with Scotland's relationship with the UK? It is important for the Government to set the tone on how they intend to proceed on an equal basis with the devolved Governments.
The hon. Gentleman is, of course, absolutely right. I will address some of those issues. He is spot on that there is an imbalance in how everything is repatriated. The repatriation of the powers is the central feature that concerns us. Devolution is an elegant solution. Devolution in this country is asymmetric, with the different Parliaments and Assemblies having different powers. The United Kingdom is a complex constitutional nation, and we have designed devolution to meet the demands of a complex, multi-nation United Kingdom. We therefore muck around with the basic premises and principles of devolution at our peril, which is why clause 11 presents such a clear danger and threat that it must be amended. It is also important to say that Scotland did not vote to leave the European Union. Every single local authority area in Scotland voted to remain in the European Union. I now have constituents who are very concerned about the chaotic cluelessness at the heart of the negotiations and discussions about taking this country out of the European Union. The Scottish Parliament has become collateral in all those conversations and discussions. There is real concern about how our Parliament will operate and about the powers it has the right to expect and to progress with.
Does the hon. Gentleman agree that the secret to the Government's thinking on this Bill is in the fact that they are insisting on including a date for withdrawal from Europe but that they refuse to include a sunset clause to give us a date when the powers they are about to grab from Wales, Scotland and Northern Ireland will be repatriated?
I congratulate the hon. Gentleman on making a very positive contribution to this debate compared with the speech we heard earlier from the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). The worthy report that his Committee produced, which is a huge contribution to the establishment of common ground, states:“We recommend that the UK Government agrees with the devolved administrations what areas should be subject to common frameworks and which ones can be devolved.â€Is that not exactly what is going on? Is that not the common ground that he and we are seeking so that we can get this process to move?
I am grateful to the hon. Gentleman for that intervention. My Committee looked at these issues and considered them seriously, and we hope our report makes a contribution to addressing some of these issues. The key point that he makes, and the thing we have to start to get to in agreeing issues relating to common frameworks, is that they have to be agreed by the Scottish Government and Scottish Parliament before they can be progressed. This idea that frameworks can be imposed upon devolved Assemblies and Parliaments is unsustainable and cannot be operated. That is-
I will make some progress; I will deal with our report before letting Members in. The key point is that this needs to be agreed and consented to before progressing. We have to get that in place in order to start moving forward on this sort of thing.
I have given way to the hon. Gentleman. A lot of people wish to speak and I know he will get a chance, so he will be able to come back to this and we can have a conversation about it. Clause 11 also changes the fundamental dynamic between the Scottish Parliament and this House. Under the clause, the UK assumes a role as the master and repository of all retained EU legislation in devolved areas. As I said to the hon. Member for Harwich and North Essex, who is deep in conversation with the right hon. Member for West Dorset (Sir Oliver Letwin), the provision creates for the first time a hierarchical model of devolution, as Alan Page said in the work that he did on behalf of the Scottish Government. This House will face absolutely no restriction in how it may want to operate in its areas of devolved competence, but the Scottish Parliament will face restrictions. This represents a sort of “know your place, Scotlandâ€, whereby this House asserts its sovereignty on the Scottish Parliament. That is not good enough. We have a conversation among several Members about sovereignty and our different understanding of and approaches to it culturally. This House obviously takes the view that parliamentary sovereignty is what it is all about, whereas we take the view that it is about the sovereignty of the people and the claim or right of the Scottish people to assert their sovereignty. This idea of a “know your place, Scotlandâ€-
I have given way to the hon. Gentleman and I want to make some progress. In large swathes of devolved competencies, we will be subject to UK frameworks, determined and controlled by the UK Government. That will never be satisfactory to anybody who works in any of the devolved structures and any devolved parliamentarian. Let me try to make it simple for the Brexiteers-although when I look around I do not see very many of them. It is strange to look around and see mainly remain types; I do not know who to pick on. I am trying desperately to see a Brexiteer. The hon. Member for Aberdeen South (Ross Thomson) will do. I will try to make it simple for him so that he can get an understanding of this issue. This situation is like Scotland giving up its place in the European Union as part of the United Kingdom in order to join a UK super-state, but the super-state does not seem to be as benign as the European Parliament. For Scotland, this UK super-state we are expected to be part of would make its jaundiced view of the EU look like a benign, cuddly, receptive institution of enlightenment. I am grateful to my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan Mac Neil) for this analogy. He is not in place, but I hope he will join us later with his words-
I have given way to the hon. Gentleman already. This UK super-state seeks to control and restrict the operation of Scotland, and it is prepared to strip us of powers faster than any United Kingdom Independence party cartoon version of some evil EU bureaucrat or Commissioner would. I wish to make a comparison with Ireland, because it is instructive. Ireland, as a member of the EU, can almost stop the progress of Brexit-it has the powers to do that, and in the past couple of weeks it has asserted that that might be something it may be obliged to seek. Scotland, as part of the UK super-state, does not even have the power to legislate for the best interests of hill farmers in Perthshire-that is going to be left to this House. That shows how power grabbing the UK super-state and this place are going to be. This is a real power grab, more menacing than any fantasy dreamt up by our Brexiteer friends in relation to their death star version of Brussels. They are even starting to use the words of the super-state. Our integrated UK joint economy is now to be “the single marketâ€. Any minute now the hon. Member for Harwich and North Essex will be made a UK commissioner and we will start to see “UK-polâ€ and “UK-atomâ€. This is the sort of place they are going with this creation of the British super-state. We have to be very careful when we are designing these things. We do not want to swap our useful place in Europe in order to be junior and subservient members of their British super-state.
I will give way to the hon. Gentleman just to shut him up for a bit.
I thank the hon. Gentleman for giving way to shut me up. All the things he has said for the past few minutes, which have detracted from the tone of his speech, are covered in “Common Frameworks: Definition and Principlesâ€ published by the Joint Ministerial Committee (EU Negotiations) on 16 October 2017. It describes in detail exactly how we will go about creating the common frameworks. It is the complete opposite of what the hon. Gentleman is saying. He is making it up as he goes along-it is very entertaining, by the way.
indicated assent.
He is saying that it is, so I will accept that.
Does the hon. Gentleman accept that the amendments he is discussing do not reflect the recommendations of the Scottish Affairs Committee and go further than those recommendations? Does he therefore understand why we as Scottish Conservatives are not in a position to support those amendments? It is not about talking Scotland down or being whipping boys for the Conservative Government, but a recognition that that is not the agreeable position where the Scottish Affairs Committee landed?
I am grateful to the hon. Gentleman, because I said that. I said that the amendments do not directly match our recommendations, but that they are in roughly the same territory. I think that he will agree with me about that. He is right that they do not match.
Will the hon. Gentleman give way?
Yes, of course-as long as I am hearing from the Welsh Government.
The hon. Gentleman gives me more power than I currently have. I refer him to the detail of new clause 64. Subsection (3) states:“Ministers of the Crown shall only createâ€these frameworks with the advice and consent of the devolved Administrations. We put that forward with the aim of securing their agreement. It relates to the wider discussion and to the other amendments about the Joint Ministerial Committee. I do not think that we should be doing things on a UK-wide basis without their consent. Unfortunately, that is exactly what the Government are doing.
I am grateful to the hon. Gentleman for clarifying that. I just refer him to exactly what is in new clause 64:“Ministers of the Crown shall only create UK-wide frameworksâ€. The presumption is that Ministers of the Crown will create them.
Read the rest of it.
It speaks about consent, but that leaves it to Ministers of the Crown to create the UK-wide frameworks. That is not acceptable.
Does the hon. Gentleman accept that Scottish Ministers and Welsh Ministers are also Ministers of the Crown?
Absolutely, but that is not the intention of the new clause. It is shame we are in this position, because the Scottish Government and Welsh Assembly amendments, which all appear in the name of the hon. Member for Edinburgh South, were very clear in their focus and direction. Why Labour Front Benchers felt they had to come along and table new clause 64, I will never understand, but I leave it up to them. I have explained to them why we cannot support it this evening and I think they understand that reason. Let us leave it at that. Lastly, I turn to my Scottish Conservative colleagues, ever so gently. No, I think they have entered into this debate with a degree of consensus. The speech by the hon. Member for East Renfrewshire (Paul Masterton) was very thoughtful and well delivered. However, this is a big test for them tonight. The devolution settlement is at stake. These are critical decisions that we must take. They can believe Ministers, but I do not know what reassurances they have received that this will be resolved. I have worked with Scottish Government colleagues and they have told me that progress has been made, but nothing is decided. The best way to get progress and to ensure that there is total focus from Ministers is to vote for the amendments. That will tell them clearly that all of us across this House say that something has to be done.
Will the hon. Gentleman give way?
I was starting winding up, but I give way one last time.
I want to be absolutely clear about the new clause, because it says clearly:“Ministers of the Crown shall only create UK-wide frameworks if they have consulted with, and secured the agreement of, the affected devolved administrations.â€It is very, very clear. I agree with the hon. Gentleman that we should be working across parties as much as possible, but there is really no need to split hairs. That is very, very clear.
I will speak to the measures that relate to Scottish devolution, particularly clause 11, which we have heard so much about during this debate. However, before I do so, I want briefly to talk about my role in this process, and indeed that of other Scottish Conservative and Unionist Members here and in the Scottish Parliament. Our job is to ensure that the Bill is in a form that will ensure that the Scottish Parliament can give its approval through the legislative consent procedure. It is fair to say that without a legislative consent motion, the Brexit process will shudder to a halt and create a constitutional crisis. It is therefore imperative that the consent of the Scottish Parliament is achieved.
Will the hon. Gentleman give way.
No, I just want to make a little bit of progress. Although I do not support the amendments proposed by the Scottish and Welsh Governments-I will try to outline my reasons why-I do think that the UK Government need to do more to find a way forward with the devolved Administrations. The leader of the SNP here, the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), completely misjudged the tone of the debate. Peddling lines about “power grabsâ€ when the complete opposite has clearly been stated to be the case really was staggering. Moreover, I was astonished that the hon. Members for Edinburgh South (Ian Murray) and for Edinburgh West (Christine Jardine) seemed to be supporting the Scottish Government's amendments, which would do so much harm to the integrity of the UK internal market and to Scotland's place in the United Kingdom, given that so many of their voters voted overwhelmingly for Scotland to remain part of the United Kingdom in 2014.
Does the hon. Gentleman accept that I and, I hope, the hon. Member for Edinburgh South (Ian Murray) are doing what we believe is necessary to protect the devolution settlement? By doing so, we are doing much more to protect the United Kingdom than the Conservatives, who may actually be undermining it.
It is my colleagues on the Government Benches who have made the Scottish Parliament as powerful as it is today. The Scottish Secretary has given a guarantee that, after Brexit, the Scottish Parliament will have even more powers. The problem with the amendment that the hon. Lady intends to support is that it goes too far. It would harm the internal market of the United Kingdom and undermine Scotland's place in the United Kingdom. I do not believe that that was what the voters of Edinburgh West or of Edinburgh South voted for when they voted for their MPs, with their Unionist credentials, back in June.
I just find this debate absolutely ironic. We talk about the power of the devolved Assemblies at a time when one individual, in a quick phone call with the Prime Minister, can scupper the whole policy and the whole plans for devolution. Nobody from the Democratic Unionist party is in the Chamber to argue their case. DUP Members will go into the Lobby to vote, but they will not come here to argue their case. That is the shame of this debate. There is no parallel between what is happening in Northern Ireland, and what is happening in Scotland and Wales.
The hon. Lady should perhaps look at last week's discussions between the Secretary of State for Scotland and the Deputy First Minister for Scotland about how powers should be divided between this place and the Scottish Parliament. I believe that genuine progress is being made, but we should not rush it.
I am very grateful to the hon. Gentleman for allowing me to correct his inaccurate record. He talked about my constituents in Edinburgh South. I should know them better than he does, and they voted 68% to 32% to keep Scotland in the United Kingdom. There is no greater defender of that United Kingdom than me, but perhaps he would like to reflect on the fact that the danger to the United Kingdom is Brexit and English votes for English laws. He stood on a manifesto saying that he would not only maintain the single market and the customs union, but enhance them.
Given the concerns that the hon. Gentleman is raising about many issues and the complexity that he is describing, is he not surprised to hear that, in recent moments, the statement that the Prime Minister was due to give to the House tomorrow about the negotiations and these matters of devolved Administrations has apparently been cancelled? The Prime Minister will not be coming here. Does he not agree that she should come to this House to explain just what is going on with these negotiations?
I am grateful to the hon. Gentleman for his intervention. I will not get involved in a running commentary on what he has been reading on Twitter. I look forward to hearing what the Prime Minister has to say when she is ready to speak to us. My priority from Brexit is twofold. My first priority is to protect the integrity of the UK internal market, which is worth four times more to Scottish businesses than that of the European Union. The other priority is to get the best possible access to the EU market. That, I believe, is also the priority of SNP colleagues, although there are differences over how we define the word “possibleâ€. The amendments proposed by the Scottish and Welsh Governments would, I believe, put the United Kingdom internal market at risk, which is why I cannot support them. By automatically devolving powers, they would place unnecessary barriers to trade between Scotland and the rest of the UK, our largest market. While accepting the need for common frameworks, the Scottish Government's approach seems to be that everything should be devolved on day one and there should then be a process of trying to re-reserve powers to Westminster at a later date once we know what trade agreements require a UK-wide approach. That approach would bring an extra layer of uncertainty at an already uncertain time.
Does not the hon. Gentleman agree that these powers have already been devolved? We are talking about powers coming back that have already been devolved, rather than something fresh and new.
These powers are with the European Union just now. We all accept that there will be a need for UK-wide framework agreements, and we need to get the process right. Why rush into devolving everything to the Scottish Parliament when the framework agreements might require powers to be retained at a UK level to protect the UK internal market, and to allow us to enter into trade agreements with other countries around the world? It is critical that we get things done in a logical and thoughtful way, rather than rushing into a situation that we might be unable to unpick further down the line.
Does my hon. Friend agree that there are many moving parts in the current process? Our debate is taking place at a time when many things are on the move. For example, there was a very positive meeting last week between representatives of Scotland's two Governments. Does my hon. Friend welcome that, and does he believe, as I do, that we should be optimistic that we can come up with an agreement based on some of the things that the Scottish Affairs Committee mentioned in its report?
My hon. Friend makes an excellent point. Significant progress is being made between the two Governments, which was why I was so disappointed with the opening remarks of the right hon. Member for Ross, Skye and Lochaber. There is not a million miles between the two Governments.
But does the hon. Gentleman accept that this is not just about how well Scotland's two Governments are talking to each other? It is also about Wales and Northern Ireland-it is about each devolution settlement. We should not expect the situations in Wales and Northern Ireland to be dependent on the outcome of talks between Scotland's two Governments.
I accept that the UK Government are holding discussions with the other parts of the United Kingdom, but I am here to represent a Scottish constituency and my Scottish constituents. I would not be doing my job properly if I did not focus on Scotland and the challenges that Brexit will present there.
Will the hon. Gentleman give way?
I want to make a little bit more progress. I completely reject the Scottish Government's unhelpful narrative in the early stages of this process-we have heard it from some who have spoken today-that there is a power grab. No powers that are currently exercised by the Scottish Parliament will be reserved to the Westminster Parliament. Every decision that the Scottish Parliament could have taken before Brexit will still be possible after March 2019. The Scottish Parliament will, in fact, be given greater powers as we leave the European Union. This Bill maintains the current powers of the Scottish Parliament. It merely replaces the restriction on legislating contrary to EU law with the restriction on legislating contrary to EU retained law.
I am beyond confused by the hon. Gentleman's assumption that we would reserve the powers that come back from the EU here on the basis of trade deals. The hon. Member for Stirling (Stephen Kerr) is shaking his head, but the hon. Member for Berwickshire, Roxburgh and Selkirk (John Lamont) did say that the powers would be reserved based on trade negotiations. As a Welsh MP, I want to know whether the hon. Member for Berwickshire, Roxburgh and Selkirk is saying that this British Parliament is to forfeit Welsh lamb in favour of Trump's chicken. Will he clarify what he means by the powers being reserved based on trade?
My comments relate to the UK-wide framework agreements, on which I thought there was cross-party agreement. We need the framework agreements to protect the integrity of the UK internal market's operations. As we progress out of Brexit, we will enter into trade deals with other countries, and it is important that the United Kingdom as an entity can offer one approach-common standards-in those negotiations. That will be good for Scottish business and for our constituents, and it is one reason why the framework agreements are so important.
Will the hon. Gentleman give way?
I just want to make a little more progress. The UK Government have made it crystal clear that clause 11 is temporary until powers can be devolved. It is simply wrong to suggest that the Bill is some sort of power grab by Westminster. I suggest that this is just another chapter in the SNP's book of grievance politics.
The hon. Gentleman makes a point about the power grab, but he needs to understand that this phrase is not just used by the SNP. As I said earlier, it was first used by the former British Prime Minister, Gordon Brown. Government Members have been surprised that I am quoting Gordon Brown, but the Conservative and Unionist party needs to understand that all the Scottish parties-apart from the Conservatives-are united in their desire to protect the devolution settlement. The hon. Gentleman is describing what he hopes will happen, but clause 11 will not enable that to happen, because it involves top-down imposition, rather than organic upwards agreement.
The hon. and learned Lady is misrepresenting the Scottish Conservative and Unionist party's position. We are completely committed to devolution. We have delivered more powers to the Scottish Parliament than any other party in this Chamber and we will continue to do so after Brexit. It is completely disingenuous to suggest anything else.
On a point of order, Mr Crausby. The hon. Gentleman has used the word “disingenuousâ€. We have already heard from the Chair once today that that word ought not to be used about another hon. Member. I very much hope that the hon. Gentleman is not suggesting that I am being disingenuous. We might disagree, but I am not being disingenuous. I invite him to withdraw the comment.
I will learn, Mr Crausby, and I am happy to withdraw the remark. The hon. and learned Lady said that the Scottish Conservative and Unionist party was in some way not supportive of devolution, which is just not the case. She has given me the opportunity to repeat my point: this party has delivered more powers to the Scottish Parliament than any other party in this Chamber, and it will continue to do so after Brexit.
Will the hon. Gentleman give way?
No; I think I have heard quite enough from the hon. and learned Lady this evening. Despite the rhetoric of the Scottish National party, the opposite is in fact true, as the UK Government and the Scottish Government are relatively close to reaching an agreement.
Does my hon. Friend agree that it would be of better service to all our constituents if we dialled down the rhetoric and looked closely at the positions that we all hold? We all agree that we need some common frameworks, and we all agree that the JMC and bilateral negotiations are the right way to make progress. Does he agree that we need to let the negotiations progress so that they can inform future changes to the Bill?
My hon. Friend is absolutely right. Both sides agree on the need for common frameworks. As I listened to the Scottish Government's Michael Russell and the Secretary of State for Scotland speaking yesterday, it was clear that significant progress has been made in the discussions between the two Governments, which is to be welcomed. I also welcome the clear statement from the Secretary of State for Scotland that the UK Government's default position will be devolution in policy areas that are already devolved, and that common frameworks must be agreed, not imposed on the devolved Administrations. The problem with the SNP's demands is that they would rush a complicated process. I do not support an arbitrary timetable for listing what will be devolved and what needs to be dealt with on a UK basis until that has been agreed between the two Governments. I hope that we can proceed in a constructive way to achieve that. Although the Government are right to take their time, we do need further clarity from them on such matters during the progress of the Bill. In particular, we need more information about the areas in which common UK-wide frameworks are likely to be required. Finally, it is absolutely not constructive-internally and within the EU-to have the threat of a second independence referendum hanging over the Brexit negotiations. We have seen the front pages of the Scottish press this morning, with the First Minister again talking about the case for independence. I see some SNP Members nodding enthusiastically. This is creating an extra layer of uncertainty for businesses in Scotland and making the task of negotiating with the EU even more difficult.
It seems as if the hon. Gentleman is coming towards the end of his speech. Before he does, will he clarify a matter for the Committee? Is he saying that if something is part of a UK-wide trade deal, it will remain reserved to this place even though it is devolved under schedule 5 to the Scotland Act 1998?
If the two Governments agree that a power is required for the framework, that is the type of power that will have to be retained. That will protect the integrity of the UK market and allow our country to do trade deals with other countries of the world, but it will be an agreed position. That is why the discussions between the Scottish Government and the UK Government are so important. That is why I have said throughout my speech that I believe significant progress has been made to get to this point, which I certainly welcome. I urge the SNP to put the national interest first and to work more constructively with the UK Government to achieve what we all want, which is the best outcome for Scotland and the United Kingdom from leaving the EU. I look forward to working with my colleagues in the UK Government to ensure that this Bill works for Scotland and for my constituents in the Scottish borders.
In the past few weeks, we have spelled out many reasons why this Bill will leave the UK worse off in terms of human rights, workers' rights, animal rights and environmental protections. However, it is designed to leave our devolved Governments and Parliaments worse off too.
I entirely agree with the speech my hon. Friend has made so far. I am sure I will agree even more as it develops further. She talks about the devolved Administrations, but is the truth not that this Bill also denudes this Parliament of powers through a number of Henry VIII clauses?
I thank my hon. Friend, and I completely agree. Wales voted for a devolved Government 20 years ago. I was part of that campaign, and I was proud to see the then UK Labour Government bring that about. We now see a more successful and confident Wales than we did two decades ago, but I fear that we are about to go backwards. The Tories have made it clear that, when it comes to devolution, they just do not get it. Anyone who understands the basics of devolution can tell you that this Bill is taking us backwards. The powers devolved to Wales must stay in Wales. Clearly, the issue is one of trust-trust to exercise devolved powers responsibly, trust to carry out measures that represent the people of Wales and trust to provide meaningful scrutiny of legislation. However, why should we in Wales trust a UK Government that are leading us to such a shambolic Brexit? As it stands, after Brexit, the devolved Governments will be at the mercy of Whitehall.
The hon. Lady's remarks lead me to conclude that there seems to be no basis, in her mind, on which Wales's two Governments can get together and make agreements, but there has to be trust. We have to have some basic trust between our levels of Government -otherwise, we will not be able to progress. Surely she is not advocating constitutional confrontation rather than consensus.
I think we are seeing the beginnings of a constitutional crisis right now actually. I will go on to explain if the hon. Member for Stirling (Stephen Kerr) will let me. After Brexit, devolved Governments will be at the mercy of Whitehall mandarins with complete control over the time, place, method and future of the repatriation of powers from Brussels. We need only an elementary understanding of how institutions and Governments work to understand that this is leading us to a constitutional crisis. Devolution is one of our country's great strengths. The last 20 years have shown devolution to be a success, with our Governments in Wales and Scotland able to forge their own distinctive paths with confidence. Decisions about Wales are best made in Wales by the people of Wales. This is not an argument for nationalism, but one for democracy. Governments formed here in Westminster are not best placed to dictate what happens in Wales. This Bill lets down the constitutional settlement and the people of Wales, Scotland and Northern Ireland. First, as drafted, clause 11 places a new and significant constraint on the devolution settlement and shifts the power dynamic around setting common UK frameworks firmly in the direction of the UK Government. As yet, the UK Government have provided no information on how these common frameworks will be agreed, the timetable for agreeing them or how Parliament and the devolved legislatures will be involved in the process.
I am afraid that what the hon. Lady is saying is just not true. The excellent report produced by the Public Administration and Constitutional Affairs Committee reproduces in full the agreement from October -just a couple of months ago-which spells out exactly how these common frameworks will be put together between the Governments. No, that is what it says in this report.
I am afraid the Chair disagreed with the hon. Gentleman. Well, the hon. Gentleman should speak to the Chair and to other Conservative Members about that. The situation is further complicated by the fact that, in a number of EU policy areas, the UK Government are in fact acting as the Government of England.
I am most grateful to the hon. Lady for giving way-I know she is trying to get on with her speech. Yes, we published the conclusions of the last Joint Ministerial Committee in our report because they, I think, do show the good faith of the Government. However, I also understand why people have doubted the good faith of the Government-because clause 11 is so bald, if I may say so. We need reassurances around clause 11 that do not necessarily change the substance of it but give assurance that there will be a process and a timetable. That would certainly be a good step.
I thank the hon. Gentleman, and I agree absolutely that we need far more information on how the common frameworks will be agreed, the timetable for agreeing them, and what is involved in the processes.
But the very fact that there is no timetable surely gives weight to the argument that what we are seeing here is a crude power grab.
I thank my hon. Friend, and I completely agree. That is what I am saying in my speech-that this is an absolute power grab to the centre and away from the devolved Administrations.
My hon. Friend is being extremely generous in giving way. Could we take a practical example of what will happen? The Welsh Government have wisely introduced a law on presumed consent for organ donation-it is settled, and it has saved 40 lives. The United Kingdom Government have not introduced such a law, and England has lost 400 lives. Scotland is in the process of introducing such a law, but the power it has to do that is being grabbed back here. Will that kill people in Scotland? That is an example of this legislative paralysis, which is taking away Scotland's powers to do something that is much needed.
Absolutely. I completely agree. That just shows that what we have here in a number of policy areas is a constitutional crisis emerging and the UK Government acting as the Government of England, not the Government of the UK, leading to a number of possible conflicts of interest when it comes to imposing pan-UK structures. Secondly, it is crucial that Welsh Ministers and the Welsh Parliament are responsible for correcting and amending all areas of EU law that are devolved. Restricting involvement means taking away powers that have been devolved for 20 years and creates an inequality between the nations of the UK, as has just been described by my hon. Friend the Member for Newport West (Paul Flynn). That endangers the proper functioning of any UK single market-one of the main aims of this Bill. We have seen the mess the Prime Minister is making of these negotiations, and we have seen the mess today. She is held to account by a small minority party-the DUP-and we have seen that this afternoon in the negotiations. A hard Brexit or no deal would seriously challenge devolution, as well as risking the Union. As a devolutionist who wants the UK to stay together, I think these issues are likely to cause the UK to begin to unravel. The UK Government must take responsibility. Finally, the UK Government know they cannot win this. They may be able to whip their Members here in the House of Commons, but they cannot whip their Members in the Lords. Those Members are determined to expose what this Government are doing and will not let them off lightly.
Like the hon. Lady, I represent a constituency in a devolved part of the United Kingdom. Many in the House believe that clause 11 should be amended and have put their point to the Government, but will she work constructively with the Government and be specific-not fan the flames of nationalism, which we all know are at play and could undermine our United Kingdom?
As the hon. Gentleman knows, I am not fanning any flames of nationalism; I am talking about democracy in this place and the democracy of the UK. The Welsh Government have tried on many occasions to negotiate with the UK Government. That has not been possible, so we have the opportunity to vote with our Front Bench on these amendments.
My hon. Friend makes the point that Conservatives with constituencies in devolved parts of the UK should vote with us this evening. The Welsh and Scottish Governments have been saying for years that the JMC should be put on a statutory footing. That would build trust between the Government and the Welsh, Scottish and Northern Irish legislatures. Does my hon. Friend agree?
Yes. It is so important that structures and discussions are formally put in place across the country.
I recall that during the passage of the Wales Bill last year we specifically asked for the JMC to be put on a statutory footing. The Government said no.
The Government will probably see the error of their ways as the Bill passes through the Lords and they lose there. My advice is that the Government should avoid any more embarrassment, listen to our devolved nations and amend the legislation before it is too late.
On 23 June last year, I voted, like more than 1 million Scots and more than 17 million Britons, to leave the European Union. I did not take that decision lightly; the caricature of leave voters as romantic zealots with no regard for our economy could not be further from the truth. Brexit is a practical decision, and I believe that the United Kingdom will be better off, and less exposed to risk, by taking control of its own destiny and trading with partners around the world, rather than becoming increasingly tied to the whims and fortunes of the European Union.
Will the hon. Gentleman give way?
I will make some progress, if I may. Voting remain was a leap of faith that I could not take. I am not here to call for chaos; in fact, it is crucial to the short-term success of Brexit that we disengage from the EU with as little disruption as possible. That is why I support the Government's plan for a time-limited implementation period after exit day. It is also why I support the Bill, which ensures that the statute book will continue to operate normally on exit day. We have a whole future ahead of us in which to use the controls that we will gain from Brexit to reform the laws and regulations in agriculture, fisheries and so on. At present, the focus should be on ensuring that the process of Brexit runs smoothly. The Bill recognises that. For me, that approach extends to our devolution settlement in Scotland. We all expect the Scottish Parliament to become more powerful as a result of Brexit, but it is vital that we have secured common frameworks that ensure that the Union continues to function properly after Brexit. The Scottish Government, I hasten to point out, agree-and I commend them for that. I call on both of Scotland's Governments to come to a quick agreement. Scots deserve clarity in advance about exactly which powers will rest with Holyrood and which with Westminster after Brexit. The amendments to clause 11, proposed by SNP, Labour and Liberal Democrat Members, do not help that process. Clause 11 preserves the current devolution settlement.
One of the hon. Gentleman's colleagues has just said that he wants specifics about clause 11, while another says that the Conservative party respects the devolution settlement. Can the hon. Gentleman explain what it is about amendment 72-“This section shall not come into effect until...the Scottish Parliament...the National Assembly for Wales...and...the Northern Ireland Assembly has passed a resolution approving the provisionsâ€-that does not respect the devolution settlement or support his position?
I will come to that. That is going to happen anyway-by legislative consent motion. Clause 11 preserves the current devolution settlement. Holyrood will not be stopped doing anything that it can do now, and nor will it automatically become able to do anything that our current EU membership stops it doing. This is simple and easy to understand, and it provides a solid basis for the talks currently taking place over which EU powers will be devolved.
I think the hon. Gentleman misunderstands what is happening. At the minute, the EU has legislative competence in 111 devolved areas, to ensure compatibility with the treaty on European Union. After Brexit, that will not be the case; what is being proposed is that the UK Parliament should be given legislative competence over these devolved areas that it currently does not have. That is a material change and constraint on devolution.
That is correct-that is what we are negotiating about. The 111 powers are already devolved at implementation level. That exists at the moment. The question is about where the frameworks sit in respect of the powers that come back from the EU. We have to look at our internal market and how we would better run our country. On issues such as food standards, it makes complete sense for us to have one framework for the United Kingdom, so that everyone can participate in the trade deals that we do. If we had different rules and regulations in different parts of the United Kingdom, our overseas trade agreements and internal market would fall apart.
The hon. Gentleman talks about different regulations. Surely he understands the desire in Scotland, which the votes cast in Scotland reflected, to stay in the single market and the customs union and have the same rules and regulations. Only England and the other parts of the UK that leave may be threatened with different regulations.
The United Kingdom voted to leave and we respect that democratic decision. Earlier, the hon. Member for Perth and North Perthshire (Pete Wishart) said that the councils of Scotland were confused, that there was a lot for them to look at and that every council voted against. In 2014, I remember that 28 of 32 councils voted to stay in the United Kingdom. Hon. Members should respect that, just as I respect the decision taken by the United Kingdom to leave the European Union.
Will the hon. Gentleman give way?
I am going to make some progress. By the time we reach Report, I hope we will have a better idea about what common frameworks are needed and how Scotland's two Governments, in Westminster and Holyrood, will work together to implement them. That is the clarity that Scottish businesses want and need. Almost two-thirds of Scotland's exports go to the rest of the United Kingdom. I represent Dumfries and Galloway, which is but a few miles from both England and Northern Ireland, so this matter is particularly important to my constituents. If the internal market of the United Kingdom is harmed, Dumfries and Galloway will be among the worst hit areas. That is why I believe the amendments to be pointless at best, and harmful at worst. The forthcoming round of post-Brexit devolution must be conducted in a clear, measured way, preserving the internal market of the United Kingdom.
I want to speak specifically to amendments 132, 133 and 134. Like many others before us today, they are designed to protect the integrity and powers of the devolved Administrations of Scotland, Wales and Northern Ireland by removing the proposed bar on legislating inconsistently with the EU in each case. I have been disappointed that in this debate we have not been able to reach the consensus that members of the Scottish Affairs Committee and the hon. Member for Perth and North Perthshire (Pete Wishart) mentioned on the frameworks. There has been no suggestion, as far as I have heard, that we do not all agree on the need for a framework-it is the devolution of the powers that we are concerned about. This Bill appears to facilitate a power grab by this Government that, in its own way, undermines the devolution settlement and the powers of the Scottish Parliament. It may have amused SNP Members that, while in the past I have appeared to be critical of their Government, I am agreeing with them on many things today. For example, I have criticised their Government's handling of Police Scotland, pointed to GP shortages, and highlighted plummeting standards in Scottish education. However, those are criticisms of an Administration and their policies. They have never been criticisms of the Scottish Parliament, of the exercise of its devolved powers, or of any other Administration's ability to exercise devolved powers. This now represents the settled will of the people of Scotland.
The hon. Lady is a member of the Scottish Affairs Committee, which took evidence from the Secretary of State for Scotland, who was adamant about the fact that there would be additional powers to the Scottish Parliament and about the fact that the existing powers would remain. In fact, this Bill cements those powers to the Scottish Parliament. What has she heard that makes her think anything to the contrary?
I will come on to that. As the hon. Gentleman himself has said, it is currently being negotiated between Scotland's two Governments exactly what the framework and the powers would be, and until we have that assurance we cannot be absolutely sure. Today I find myself in the strange position where I feel as though I have been transported back 25 or 30 years, to a time when the Opposition parties are all in favour of devolution and campaigning for devolution, and the Conservatives are needing to be persuaded.
No!
Would my hon. Friend also like to consider the threat to the United Kingdom that is represented by the debacle that is happening with the border between Ireland and Northern Ireland in the context of ensuring the coherence of the United Kingdom? Surely the Government are failing on that front as well.
My right hon. Friend makes a very good point. That is yet another example of how this Government are undermining the United Kingdom at every turn. For Opposition Members, the drive is to protect the devolution settlement and potentially the stability of the United Kingdom. There are a number of other amendments that are similar to ours which we are happy to support, and we will not press ours to the vote. Our overriding priority is to get this Bill in shape so that there is no danger that when it goes to the Scottish Parliament it does not get that consent and we face the crisis that Opposition Members have worked so hard to avoid for the past five years.
This has been a very interesting debate. It has been quite extraordinary to hear some of the rhetoric from Opposition Members about power grabs. I do not care where that phrase originated. Whether it was Gordon Brown, Kezia in the jungle, or Patrick Harvie, the fact is that it is simply not true. It is amazing that Opposition Members have found this new belief in sovereignty. Let us go back to some basic facts. For the past 40 years, the UK has ceded its sovereignty to the EU and its institutions, with literally thousands of pieces of legislation being imposed on the UK and all its nations, and our Parliament having no ability to scrutinise them-
Will the hon. Gentleman give way?
No, I am just getting started. There has been no ability to scrutinise them, amend them, or even reject them. Now, on the day that we leave the EU in March 2019, powers will be returned to the UK and the Scottish Parliament will become more powerful than it already is.
Will the hon. Gentleman give way?
No, thank you. The Scottish Parliament will regain powers over agriculture, the environment and transport, for example. We have seen quite an astonishing level of hypocrisy from Opposition Members today. Where was the SNP's belief in sovereignty when over the past 40 years laws were imposed on the people of Scotland by the EU without debate in this place, or over the past 20 years without debate in Holyrood?
I am grateful to the hon. Gentleman for letting me stop him in mid-flow. Has he never heard of the European Parliament?
I am aware of the European Parliament, which cannot reject the legislation that is imposed on it by unelected commissioners. This is about re-establishing democracy. The EU has nothing to do with democracy-it is a deficit in democracy. We are taking that back. Opposition Members should celebrate that fact.
Will the hon. Gentleman give way?
No.
Thank you, Sir David. There was no option for debate, and no opportunity to amend or even reject those laws. Where was SNP Members' concern for sovereignty then?
I would like to make some more progress before I take an intervention. SNP Members have manufactured the power grab argument in grievance, yet we have heard time and again from the First Minister, all the way along, that the position of the SNP is for full membership of the European Union. There we go; we have had it confirmed again. The SNP's position is to support full membership of the European Union for an independent Scotland. The argument that SNP Members are making today is clearly fake news, because they do not want a single one of the new powers that will come to Scotland. They want the EU to retain and maintain those powers.
My hon. Friend is making a powerful speech, as is characteristic of him. Does he agree that SNP Members here are not representative of the SNP Government in Scotland? The SNP Government are quite attracted to the idea of these additional powers and would quite like to have them, but SNP Members here are indulging in rhetoric.
My hon. Friend is right that the rhetoric of the SNP group in Westminster is very different from that of the SNP group in Holyrood.
Will the hon. Gentleman give way?
No, I will answer this point first. It looks as though we are achieving a real consensus about the powers that will come to Scotland, but we have just heard the SNP's heated rhetoric in this Chamber. I know the SNP group in Holyrood, because I worked with them, and I know that Alex Neil and some bashful others are very keen on Brexit and powers coming back to, and being exercised in, Holyrood. SNP Members in Westminster want those powers to lie with the EU, and they want the EU to retain and maintain full control over all those areas. Given that the EU is still very much travelling in the direction of greater integration, the SNP will simply want to cede even more powers to the EU if they get their way and win a second independence referendum. Boy, we in the Conservative party will do everything to prevent that from happening. There is no power grab here; this is simply the SNP's great power giveaway.
Will the hon. Gentleman give way?
The hon. Gentleman will want to hear this point, believe me. The SNP is only stronger for Brussels, while the Scottish Conservatives deliver for Scotland yet again with an even stronger Scottish Parliament. Perhaps the right hon. Member for Ross, Skye and Lochaber (Ian Blackford)-he has just come back into the Chamber; that is terrific timing-should reflect more on the comments in his speech. He says that the people of Scotland are sovereign. If that is the case, he should respect the sovereignty of the people of Scotland who said no to independence in 2014, and who rejected in 2017 the SNP's premise of a second independence referendum. Unlike the SNP, Scottish Conservatives will continue to deliver for Scotland, and for its businesses, communities and people.
I should point out to the hon. Gentleman that, when we appeared in front of the Scottish electorate in 2016, we won a mandate to deliver a Scottish referendum if Scotland was dragged out of the EU, the single market and the customs union. Lastly, we have got 35 MPs; we won the election in Scotland.
In 2016, the SNP went into the election with a majority in Holyrood and lost it. The SNP now depends on the votes of the Greens to see through its legislation, its budget and a second independence referendum. The right hon. Gentleman mentioned the election in June. I do not know whether he has looked behind him, but 21 of his colleagues have gone missing, including the former leader of the SNP, Alex Salmond, and the party's leader in Westminster, Angus Robertson. In that election, it was quite clear that the people of Scotland wanted to send the First Minister a message: “In 2014, we said no and we meant it.â€ That is why there are fewer SNP Members here than there were. There may be 35 of them, as the right hon. Gentleman says, but 13 Scottish Conservatives have achieved more for Scotland in five months in the last Budget than 56 SNP MPs ever did in two years. I want to get back to my previous point. We will always stand up for Scotland's businesses, communities and its people.
On that point, will the hon. Gentleman give way?
I have literally just answered a point, so I will finish making this one. We will ensure that no barriers are created to trade within the UK. Even the SNP Scottish Government-including the Brexit Minister, Mike Russell-accept that there will have to be common UK-wide frameworks, because they are needed. That is reflected in the Scottish Affairs Committee report, as other colleagues have highlighted in the debate. We need common frameworks, because a UK single market or unitary market-whatever we want to call it-is our greatest asset and we need to maintain it. Where frameworks are needed to underpin the work of companies and individuals across all parts of our United Kingdom, we will make the case for such frameworks.
Does my hon. Friend agree that, although the SNP always talks down Westminster, this is a great opportunity to talk up Holyrood and Westminster and use the common frameworks to find areas on which we can pull together and act as one great country?
My hon. Friend is right. Scotland has two Governments: the United Kingdom Government and the Scottish Government. I know from my own constituency that my residents like it when both Governments work together, rather than being at each other's throats. We have co-operated on city deals, for example, to achieve something, and we need to see more of that, because my constituents are absolutely fed up with the back-biting.
On the subject of powers, does the hon. Gentleman still subscribe to what was written on the banner that he held outside the Scottish Parliament for the Vote Leave campaign? The banner urged people to vote to“LEAVE the EU and give control of the Scottish fishing industry to our democratically-elected Scottish Parliamentâ€. Does he still agree that those powers should go to the democratically elected Scottish Parliament?
I am so grateful to the hon. Gentleman for bringing that up. By leaving the European Union, we can take back powers over fishing, and we will come out of the common fisheries policy. As we heard earlier in this debate, the SNP wants to take us straight back into the EU and therefore drag every fisherman in Scotland straight back into that very policy, selling Scotland's fishermen out. That has been confirmed today, but the Scottish Conservatives, such as my hon. Friend the Member for Banff and Buchan (David Duguid), will stand up for Scottish fishermen and deliver a Brexit that works for them. I thank the hon. Gentleman for giving me the opportunity to say so.
I am grateful to my hon. Friend for saying that the people of Scotland like it when Scotland's two Governments work together. We have heard several times from SNP Members-not the hon. Member for Perth and North Perthshire (Pete Wishart), whose speech was, I thought, rather positive-that that negotiation and co-operation has not started. But the Select Committee's report states:“We recommend that the UK and Scottish governments continue their efforts to secure agreementâ€.“Continueâ€ suggests that something has started, does it not?
I agree with everything that my hon. Friend has said. It is clear from this debate that I want these powers to come to the Scottish Parliament, but SNP Members want them to stay with the EU. I find it fascinating that I have a higher opinion of the ability of Nicola Sturgeon and her Cabinet to make decisions on such matters in Scotland than her own party in Westminster does. That really tells us something. To continue with what I was saying, we will need UK-wide frameworks in areas such as food labelling.
Will the hon. Gentleman give way?
I want to make some more progress, please. It would make no sense whatsoever to have four different sets of food labelling rules, because it would simply add to our companies' costs and cause confusion for customers right across the UK. Common frameworks are needed to secure the functioning of the UK internal market, as my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont) said, while acknowledging policy divergence and ensuring that we comply with international obligations. We cannot support the SNP's proposal because of the danger that it poses to the integrity of the UK single market, and therefore to our United Kingdom. Let us be absolutely honest. Is it a surprise to anyone that the Scottish nationalist party would suggest something that would create barriers in our UK, in order gradually to break it up? Absolutely not. I gently urge our colleagues in the Scottish Liberal Democrats and Labour to be cautious, because the SNP's amendments are simply a Trojan horse for the Scottish Government. We in the Scottish Conservatives will work constructively with our colleagues to achieve something better, and I am sure that the Government will reflect on what they have heard tonight.
Will the hon. Gentleman give way?
No, thank you. We need clause 11 to work for our United Kingdom-to protect it as well as enhancing our devolution settlement. It is in the interests of all our constituents that a deal is reached and an LCM is passed in the Scottish Parliament, so perhaps the right hon. Member for Ross, Skye and Lochaber should reflect on his pantomime performance earlier this afternoon. I know he is no longer in the Chamber, but as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) stated, the Scottish Conservative group will work constructively with our colleagues to help to support both of Scotland's Governments in moving forward with a withdrawal Bill that will strengthen Holyrood and maintain the integrity of the UK. In his speech, the hon. Member for Perth and North Perthshire (Pete Wishart) spoke about having confidence in the UK Government. I actually have confidence not just in the UK Government, but in the Scottish Government because I believe they will come to a deal that will work for the whole of the United Kingdom and for Scotland's place within it. I do not think we should act prematurely tonight because, as we know, there is an upcoming meeting of the JMC, and there is more to come from such a process. We will not support the amendments tonight because we are taking a constructive, productive approach that will actually deliver for Scotland, rather than playing the politics of grievance.
The hon. Gentleman is making a good speech showing up the deficiencies of the Welsh Assembly and the Scottish Parliament. Does he agree that current events show the vastly advantageous situation in which Ireland finds itself? Its Parliament is not dependent on this place but is actually pulling the strings and telling this place what to do, and this place has to listen.
I am grateful to the hon. Gentleman for giving way. There is a good deal of agreement between us. He talks about the 2017 Act and some of the more abstract aspects that people listening in perhaps might not understand or follow, but there are practical and technical implications for children's rights, the environment and so on. Does he not think that those aspects should be explored fully before we move to a vote? I certainly hope to do so.
Those concerns have been laid out by the Scottish Government for over a year now. Surely today's actions by the UK Government show that if they can concede on Northern Ireland with regard to the customs union and the single market, despite the Democratic Unionist party vetoing that, they can make the same offer to Scotland and to Wales.
I completely agree. The simple way to resolve all these issues would be for us to stay within the customs union and the single market, to stop messing about, get on with it and remove half the problems that will be created for Wales, Scotland and elsewhere. That is my very clear view. What I cannot understand is that the Government have been told about these problems repeatedly by Welsh Government Ministers. They have been told about these problems repeatedly by the legal advisers in the devolved Administrations. They have been told about these problems repeatedly by Members of this House. They have had plenty of time to come up with some fixes. Some of these areas are really not that contentious. They are practical. They are not about wrecking the Bill or stopping Brexit; they are about making sure we keep a stable constitutional settlement in these islands. And yet, where is the evidence that the Government have listened to any of it? So far, there is very, very little. In fact, the Secretary of State for Wales has barely been in here for the debate. Other Ministers have been here for longer. The Secretary of State for Scotland at least had the courtesy to take part in it and make some interventions. The Secretary of State for Wales has been completely absent, apart from about 20 minutes at the start of Bill. I do not think that that shows respect for the people of Wales and for the Members of the Welsh Assembly who have been putting these concerns forward. I sincerely hope that Ministers do listen and come up with fixes to these problems. Otherwise, I can tell them that they will have a very rocky ride on Report and in the other place and that they will have very little, if any, chance of getting the legislative consent motions, which they say they want to receive, from the Welsh Assembly and the Scottish Parliament.
Can the hon. Gentleman imagine any politician elected in the Republic of Ireland thinking that Ireland could not manage such matters itself, especially given what has happened today? Why does he require-demand, need-London to do this? Can he not stand on his own two feet and look at the world eye to eye? What is this puppy-dog need for London to sort it all out?
I do not recognise those concerns. As has been said by several hon. Members tonight, this is a matter of trust, and I accept that it is probably far easier for Scottish Members on the Government Benches to trust the Government to get on with the job of delivering the Bill as required. As I said, the leaders of the devolved Governments have an opportunity to help shape the UK's exit from the EU. This is important because there is a universally recognised need for UK frameworks to protect sectors of our economy heavily influenced by EU laws, particularly agriculture and fisheries, which are very important to my constituency. It is universally recognised, including by the Scottish Parliament and the Welsh Assembly, that UK frameworks are necessary and must be established, not imposed, as has been mentioned. This should be done in full partnership with the UK Government. That recognition was shared in what I thought was quite a beautiful moment between the Secretary of State for Scotland and the hon. Member for Edinburgh East (Tommy Sheppard) in a recent meeting of the Scottish Affairs Committee.
The hon. Gentleman talks about devolved Administrations being involved in discussions, but none of them is involved in the negotiations themselves, because of the UK Government's decision to exclude them. Does he agree that in the end that was a big mistake?
The UK Government are interacting actively with the devolved Administrations, but it has to be recognised that it was the UK that voted to leave the EU and it is the UK that has the responsibility for the negotiations. It is disappointing that the SNP is attempting to undermine the progress made by its Ministers in Holyrood on working towards UK-wide frameworks that work for Scotland. Despite the best efforts of SNP Members, the United Kingdom is still a united kingdom. To expect powers currently held by Brussels to devolve straight to the Scottish Parliament, without a transitional stage in between, is simply not practical or in Scotland's long-term interests. I say that as someone who believes that Scotland is better off in the Union, whether or not SNP Members agree. In conclusion, I am confident, particularly given the bending of ears by my Scottish Conservative colleagues and me, that the Government will do right for Scotland. Devolution will be strengthened, but not by these amendments.
It is a pleasure to follow the hon. Member for Banff and Buchan (David Duguid), who talked about the promise of more and better powers than the Scottish Parliament currently holds. I suppose the same goes for Wales, but the problem is the question of when, and how we can be sure. While he ruminates on that, perhaps I will get on with my speech.
Although the Tories might need to ruminate on that, clearly Leo Varadkar does not. He has the powers and he is using them.
Indeed. That was an instructive point for us all. I rise to speak to Plaid Cymru's amendments 90 to 92. I am pleased to have co-sponsored the similar joint Welsh and Scottish Government amendments although, for reasons that I will make clear, I prefer my own versions. The UK constitution is unwritten-or at least it is not written down all in one place-and is constantly evolving. It has evolved in such a way that we no longer live in a one-Parliament state. The UK consists of four representative, governing and law-making bodies, not one. That might seem like stating the obvious but, as I noted in my speech on our first day in Committee, there is no operative Assembly in Northern Ireland, the Parliaments in Wales and Scotland are considered differently from this one in Westminster, and of course England is invisible, except that we accept at the very least that England is de facto represented by this place, which raises questions of conflicts of interest. The point is that democracy and its values apply to all, not just to one, and devolution demands that all parts of the UK have a say, not just one. As Members will know, the devolution statutes operate through a reserved-powers model in which certain matters are listed as the UK Parliament's responsibilities. That means that matters not explicitly reserved to the UK Parliament are within the competence of the devolved legislatures.
The hon. Gentleman is making a good point, and the rhetoric of a UK single market would make sense if the UK was composed of independent states, instead of being one super-state.
It is a great pleasure to be asked to address the Committee as a lonely Welsh voice in this Scottish enclave south of the Gangway. I should like to say how impressed I am with my new Scottish colleagues, and with the way in which they stand up for their constituencies and for Scotland. It was always predictable that clause 11 would be one of the more contentious clauses in the Bill, given that it impinges on the devolution settlements that have been created over the past 20 or so years. When we consider what the clause seeks to achieve, it is important to consider the history of devolution in this country. In the case of Scotland and Wales, it was implemented as a consequence of the two referendums that were held in 1997. That was some years after the United Kingdom became a member of what was then the European Economic Community. Indeed, all our devolution legislation was put in place after we joined. It is important to remember that, at the time of accession to the European Union, devolution was not contemplated. It was in the context of our membership of the European Union that the various devolution settlements were crafted. The powers that were conferred on the new devolved bodies are consequently subject to overriding EU law, regulations and common frameworks, the principal purpose of which was to protect and preserve the integrity of the European single market, as we have heard repeatedly today. It is a fact, however, that as a consequence of the protection of the European single market, those reservations have operated to protect what I am quite happy to call the UK internal market-
There is no such thing.
I hear the hon. Gentleman saying from a sedentary position that there is no such thing. The fact is that there is such a thing, and furthermore, after we leave the European Union, the existence of such an internal market will become ever clearer.
Does the right hon. Gentleman think that France has a French internal market and that Germany has a German internal market, or are they just national economies? Does Perthshire have a Perthshire internal market?
I have never been to Perthshire but I am sure that it is a delightful place. In this country, we have four countries and three devolved bodies, which have competence in the area of economic development, among other things. The hon. Gentleman and I might be at odds on this, but I take the view that there is a United Kingdom internal market. He can come to the contrary conclusion if he wishes.
I am intrigued. Can the right hon. Gentleman identify anyone who has spoken in the House today who has argued against having a UK internal market?
That is the problem. There is no timescale. This place is snarled up in dealing with Brexit work, and that pressure will be even greater after Brexit. Those of us from the devolved countries feel that the needs of our farmers and fishermen will be way down the agenda for the devolution work being done here.
My hon. and learned Friend is absolutely right. The Scottish Affairs Committee has not heard one dissenting voice to the fact that clause 11 is thoroughly bad for devolution. It is not just all the constitutionalists and all the legal experts who agree with that; the Conservatives agree with it too. They do not believe that clause 11 is fit for purpose. What can she do to encourage them to join us this evening to ensure that we make progress and change the clause significantly?
I am encouraging those Conservatives to listen to the experts who have given evidence to the various House of Commons Committees, whether orally or in writing. I have mentioned several of them. May I mention what Dr Jo Hunt, from the University of Cardiff, said to the Exiting the European Union Committee? She said:“This should be a profound constitutional moment, where the nature of the UK is properly addressed, and a debate and discussion is had about what the United Kingdom is for and what the roles of the various parties in the United Kingdom are. We have had any number of Select Committee reports from the Commons and the House of Lords dealing with interinstitutional relations, intergovernmental relations, and devolutionâ€. Now is the moment, when we are allegedly taking back control, to look carefully at how we distribute those powers within the nations of the United Kingdom. We should not simply bring them back in one box from Brussels, rest them at London and leave it to London to decide when and if Edinburgh and Cardiff ever get sight of that power. There is a terrible irony here. Many Brexiteers went on at great length about how Brussels imposes its will on the United Kingdom, but that is actually a fundamental misunderstanding of how the European Union works. As has been explained, it works by a number of sovereign nations pooling their sovereignty and participating in a process of decisions. If anyone on the Conservative Benches really is a Brexiteer who believes in taking back control and does not like the way, in their opinion, Brussels has imposed on the UK, surely that should make them even more motivated to ensure that the centre-Westminster-does not impose on the constituent nations of the UK.
We have all raised concerns about clause 11, and we are trying to constructively address them. The hon. and learned Lady makes her position about devolution clear, but she also talks about a chance to refresh the whole constitutional settlement for the United Kingdom. Will she work constructively with Members on the Government Benches to address issues such as air quality, which is devolved? It would be better if we had a joined-up UK approach and if that were reserved with climate issues and other such issues, so that we look effectively to get the best outcome for our constituents and not just go on to political dogma.
The Scottish National party has always worked constructively with all parties to ensure that the principle of subsidiarity is respected within these islands. However, what we are not in the business of doing is simply lying supine while all these powers are brought back from Brussels and left here at Westminster, with absolutely no time limit- The hon. Member for Stirling (Stephen Kerr) may not like it, but this is the weight of the evidence that we have heard about the effect of clause 11. It is not my view; it is the view of many others.
I will continue my point. We are told that it is imperative for everything to be imposed on Scotland, Wales and indeed Northern Ireland from the top down, because we have a UK single market.
Will the hon. and learned Lady give way?
No, we have heard a lot from the hon. Gentleman. I only have a little time left, and I want to develop my point about the single market, because it is very important. I am indebted to the Scottish blogger and writer Paul Kavanagh-better known on these Benches as the Wee Ginger Dug-for my thoughts on this matter. He has pointed out that there is no such thing as a UK single market. At the moment, the United Kingdom is a unitary state, and what exists in the UK is the internal market of a unitary state. A single market refers to the situation where there are several distinct and discrete national entities coming together from the bottom up in a mutually agreed and negotiated regulatory framework. That is what the EU is at present. It is not what we have in the United Kingdom at present. Indeed, after Brexit, if this Bill goes through unamended, the unitary state of the United Kingdom will be even more centralised than it is at present. At the moment, the EU states decide collectively what regulations they want to govern the EU single market. On the basis of the Bill as currently drafted, what will happen is that Ministers of the Crown-by the way, that does not include Scottish Ministers; the definition just talks about Cabinet Ministers-will decide on these frameworks, and they will be imposed on us. I am conscious of what you said, Sir David, so I will bring my remarks to a close, but I will give way to the hon. Gentleman.
On the definition of what constitutes a single market and a unitary market, my interpretation is that any marketplace's singularity is simply defined by the friction in the trade and the commerce carried out within it. By definition, it is not really something that we can simply sign up to or leave. It is about the extent to which there is a commonality of regulatory and trading arrangements, and cultural and institutional relationships. Therefore, this definition does not really hold water in that respect.
The distinction I am drawing is between a single market and a unitary market. I am saying that the European Union is a single market because it is a collection of sovereign states that come together and participate in making common regulations. The United Kingdom, as framed by this withdrawal Bill, will not be such a single market. It will be a unitary market where the regulations and the frameworks are imposed from the top down. That is the distinction that I seek to make.
Will the hon. and learned Lady give way?
As I said, I am drawing my comments to a close. I want to address one of the many points we have heard from the Government Benches. I think it was the hon. Member for Aberdeen South (Ross Thomson) who said that he is upset and disappointed that the issue of independence is still on the table. Well, I will tell him why it is still on the table; today gives us a good example. The majority of people at the last Scottish election voted for Members of the Scottish Parliament who want another independence referendum-it is called democracy -and the Scottish Parliament itself has voted that there should be another independence referendum if it is necessary because of the Brexit process. But the reason why so many of us in Scotland are interested in the notion of independence really arises from the current crisis in which the United Kingdom finds itself. I will finish by quoting the First Minister of Scotland, who today said:“Right now, Ireland is powerfully demonstrating the importance of being independent when it comes to defending your vital national interests.â€
This debate concerns all constituent countries of the United Kingdom, but I will reserve my remarks to Scotland as I represent West Aberdeenshire and Kincardine. As a Member of Parliament of the 2017 vintage, which is a very fine vintage, I am finding-along with everyone else, I am sure-that one of the most common questions asked of me on the doorsteps and in constituency surgeries is, “How did you vote in the referendum on membership of the European Union?â€ On such occasions, I deploy one of two answers. I either say, “I'm terribly sorry that I did vote to remain, but I promise you that the United Kingdom is leaving the European Union, and we will make a success of itâ€, or I answer, “Yes, I know. Like you, I voted to remain, so I'm sorry, but the fact is that we are leaving the European Union. And, you know what? I think we will make a success of it.â€ That is very easy. Being a Scottish Member of Parliament, another regular inquiry is whether I believe that powers returned from Brussels should be directly transferred to Holyrood. It is not a simple question. No, it is not, and it requires more than a simple answer. Unfortunately, that is hard to get across on the doorstep, or even in this Chamber.
Let me make it simple for the hon. Gentleman. The founding principle of the devolution settlement is that things that are not reserved are automatically devolved. Is it or is it not his belief that clause 11 fundamentally undermines that principle?
Like my hon. Friend the Member for East Renfrewshire (Paul Masterton), I believe that changes will have to be made to clause 11 as it stands, but that we cannot support the amendments tabled by the SNP as they would fatally undermine the United Kingdom and the common market that we all share. Let us look at the facts of the devolution settlements. The current devolution settlements reflect the UK's membership of the European Union. They provide that devolved institutions cannot act or legislate incompatibly with EU law. This has meant that, while we have been within the EU, we have had overarching laws and frameworks across the UK, which has meant that businesses in the UK can trade with one another knowing that they share agreed standards and that we have agreed approaches on how to manage our shared resources. Ultimately, it has meant that Britain can enter into international agreements knowing that our whole country can meet our obligations. That is vital. It is complex and hard to explain to people when we are out knocking on doors, but it is vital that we try. The future of our internal market, which exists, and of our United Kingdom depends on our making a success of Brexit, and that means making a success of devolution and the settlement for our nations and regions.
The hon. Gentleman is talking a lot about being on the doorsteps in his constituency. When his constituents ask him whether he thinks clause 11 is deficient and whether he would like it fixed, does he explain how it is deficient and how he would like it fixed?
I thank the hon. Gentleman for that question. I have to admit I have never been asked specifically on the doorstep how I think clause 11 is deficient, but when I am I will explain the issue to people, and if the hon. Gentleman holds on, I will get to that in my speech. Let us be clear: this is not a power grab. It is part of a process through which we must work to achieve the best possible settlement to ensure continuity for business, the integrity of our internal market, and the future success of our United Kingdom. We must, and we will, make a success of this process.
Is the hon. Gentleman actually saying that if, for whatever reason, clause 11 was not passed or was significantly amended, what he refers to as the UK's single market would be done away with?
I am not sure I actually understand the premise of the question. I will give way again if the hon. Gentleman would like to explain.
It is quite straightforward. The hon. Gentleman is alleging and suggesting that, for some reason, if clause 11 were significantly amended, his internal market would be at risk. Does he actually believe for one minute that, if clause 11 were rejected, his internal market would absolutely disappear?
I am arguing that, if we agreed to the provisions set down by the Scottish National party and the other Opposition parties, it would be fatally undermined and at risk. Just to prove my point, we all know that making a success of Brexit and protecting and strengthening our internal market are not in the interests of the Scottish National party, whose raison d'être remains the destruction of our United Kingdom. Conservative Members are committed to making these things work and to making a success of this exciting new chapter in our island's story for business and for peoples from Inverbervie to Ipswich, and from Banchory to Bognor. That is why the UK Government are working tirelessly with the devolved Administrations in Cardiff and Edinburgh, and with the various parties in Northern Ireland, to make sure that when we leave the European Union in 2019, the laws that protect the integrity of our market, and the common frameworks that ensure parity and access across Britain, remain the same as they are today. That will involve compromise, but surely even the greatest hardliner would agree that it makes no sense for each of the four nations of our United Kingdom to have different rules and regulations or different regulatory bodies for packaging, animal welfare or aircraft noise, for example. If we get this right, little will change for most people and most businesses. For the fisherman, it will still be Marine Scotland responsible for implementing rules and regulations on the quayside. For the farmer, it will still be the Scottish Government making a mess of their support payments. But instead of Brussels being responsible for overarching frameworks or new laws, or for negotiating trade deals, fishing quotas and common agricultural payments, it will be the sovereign United Kingdom Parliament in London, which is directly responsible and accountable to the British people.
Will the hon. Gentleman give way?
Will the hon. Gentleman give way?
I will- Yes, I am going to speak. I know that SNP Members will be very pleased about that. I will keep my remarks short because a number of people want to speak, but I want to respond to the idea that has been traded pretty commonly in the past couple of speeches about the imposition of a devolution settlement vis-Ã -vis the frameworks. The Scottish Affairs Committee report quotes the Secretary of State for Scotland, who said:“A UK framework is not a framework that the UK Government imposes; it is a framework that is agreed across the United Kingdom.â€I believe that that is a definitive expression of the Government's policy in relation to the nature of frameworks and how they will be achieved. Every time we have a debate in this House in which devolved powers and Brexit are mentioned, the Scottish nationalists go crazy- Yes, berserk; that is a good word. A number of contributors, including the hon. Member for Airdrie and Shotts (Neil Gray), have spoken positively about how we can work together to create common ground and lift the issue from the trenches of political warfare in which, too often, the SNP wish to put it.
The hon. Gentleman is one of the 12 new Scottish Conservative MPs. Many of his colleagues have already said that clause 11 is deficient, and they would like it to be amended. Will he tell us whether he thinks it is deficient, and how he would like it amended?
I will come on to that point, if the hon. Gentleman will let me make some progress through my speech. I remind the Committee that despite what we heard to the contrary, the Conservative Government delivered additional powers to the Scottish Parliament in 2015 and 2016 in fulfilment of their vow, making it the most powerful devolved Parliament in the world. That was a Conservative promise made and kept. The SNP wants to create a crisis, and I hope that we in the Conservatives will continue to be reasonable in our approach to the issue.
Does my hon. Friend agree that SNP Members have absolutely no interest in our making a success of Brexit, because their only aim is to break up our United Kingdom?
I thank my hon. Friend for his intervention. I was about to say that the SNP is like a collection of 35 carbon copies of the famous Rikki Fulton creation, the Rev. I. M. Jolly. SNP Members sit there on the Benches, depressing the nation and bringing their grim worldview to the people of Scotland. Being so cheerful keeps them going. They talk themselves and Scotland down, and they imply that our Scottish entrepreneurs, our businesses and our communities will be unable to cope with any change and unable to take advantage of the opportunities that the hon. Member for Airdrie and Shotts mentioned and that will undoubtedly arise as we leave the European Union.
The Fraser of Allander Institute predicts that not 80,000, but 139,000 jobs are at stake. Does the hon. Gentleman agree that that is not talking Scotland down; those are the facts of the matter when it comes to Brexit? We are just about at a cliff edge now.
I thank the hon. Gentleman for bringing the Fraser of Allander Institute to the attention of the Committee, because the institute also points out that the perpetual threat of a second independence referendum is having a dragging effect on the Scottish economy.
The hon. Gentleman referred earlier to the Scottish Parliament being the most powerful Parliament in the world, and I am aware that he opposed its initial creation but now recognises its benefits. The creation of the Scottish Parliament has resulted in regulatory divergence between parts of the United Kingdom. Does that fact not undermine the whole logical position of the Tories' argument against our amendments? Surely, it has already been established that divergence exists but there is still a viable single market in the UK.
Will the hon. Gentleman give way?
I was just about to deal with the hon. Gentleman's previous intervention, but I will sit down.
I was about to ask the hon. Gentleman when he was going to talk about the deficiencies in clause 11 and what he would do to sort them out.
I will say this much: it is not that I do not understand people's concerns about clause 11, because I share some of those concerns. As the intergovernmental discussions progress and the Bill returns to this House, as it will, before it goes to the other place, it is very much my hope that there will be some greater detail in clause 11 to help all hon. Members to have a degree of confidence in its intent. We are talking about trust, or the lack of trust, and that issue is keeping us from working out a satisfactory agreement. Steps must be taken to underpin the trust that needs to exist on both sides-the UK Government and the devolved Administrations. The UK Government will have to demonstrate trustworthiness in the way that the Bill is amended, as it must be, and the Scottish Government will have to show trustworthiness by committing themselves to the outcome of these talks to the extent that they will publicly state their support for the passage of a legislative consent motion in the Scottish Parliament. To me, that is what trust looks like.
If the UK Government genuinely wish to show willing towards the Scottish Government and their concerns about the Bill and clause 11 specifically, does the hon. Gentleman not think that powers should be devolved directly to the devolved Administrations first and then that frameworks should be agreed? One wonders what the UK Government are actually afraid of. The hon. Member for East Renfrewshire (Paul Masterton) spoke about powers being devolved when the UK Government think it is safe to do so. Why is there such concern about not sending those powers to the Scottish Government?
There are, as we have discussed, either 109 or 111 powers. The Public Administration and Constitutional Affairs Committee report lists 111. There is an issue of trust that we need to address to underpin any eventual agreement. The point is that the Bill will need to be amended. Those amendments will need to reflect where the powers will eventually rest, and whether they will go straight to the devolved Administrations on the day we leave the European Union, or if some will be subject to mutual agreements-memorandums of understanding-that will create the frameworks to support the functioning of the UK's internal market. I hope very much that the Government will bring forward some detail to add light with regard to those issues.
Like many of his colleagues, the hon. Gentleman is therefore admitting that clause 11 is deficient. He is almost but not quite telling us how he might fix it, but even so he is going to vote in favour of it this evening.
Yes, and that is no surprise, because I sit on the Conservative side-the Government side-of the House of Commons. I believe and trust in the Government. I believe that Ministers will deliver on a settlement. I do not know why that is such a surprise to Opposition Members.
The hon. Gentleman has told his Front-Bench colleagues that he will vote with the Government this evening but, should the Bill return unamended in this House, what would be his inclination on Third Reading?
In common with other colleagues who have spoken today, I expect there to be amendments, and when those amendments come to the House in due course, it will be because everyone involved in this process, including the UK Government and the devolved Administrations-the Scottish Government are my immediate interest-will have put on an adult head because there is so much at stake for our country. I happen to think that one of the most positive contributing factors to the change of climate has been the Scottish Affairs Committee's excellent report, which is a step in the right direction.
On a point of order, Sir David. I am slightly confused about the process in this Chamber. The hon. Gentleman is making a fine speech, but he keeps talking about amendments that will result in him supporting the Bill. Have you been notified of the Government tabling any amendments to clause 11?
Let me press on, because I did say that I would be brief, and I am in danger of not keeping that promise. I insist on the Government doing what has to be done to ensure that there is no disruption to the UK home market. I want to be clear that when I say the UK, I mean Scotland, England, Wales and Northern Ireland. I do not want a Brexit that weakens the United Kingdom politically or economically. I am a Unionist. I do not want to see the creation of needless barriers that hinder the frictionless function of Scotland's most important marketplace, namely the rest of the United Kingdom. The process should avoid any unwarranted points of difference that make it more difficult to trade throughout the UK, because that would inevitably affect business, which would inevitably affect jobs. Common standards will be needed for the common market within the UK, and those standards will need to be set democratically and transparently. Businesses are looking for leadership on these matters as much as they are looking for harmony throughout the UK single market. It is time to step up to the plate in that respect. Frameworks for the operation of the UK single market must be set at a UK level on the basis of agreement across the United Kingdom, including with the devolved Administrations, and it is up to us as politicians to rise to that challenge. I am not calling for a whole raft of complex arrangements, because I do not think that would help anything, but we do need some jointly agreed common frameworks. I acknowledge and welcome the Scottish Government's positive approach towards that end. I believe that the two Select Committee reports that were published in the last couple of weeks have been hugely helpful to the aim of bringing about the co-operation and partnering needed between Scotland's two Governments.
I rise to support clause 11 and schedule 3. Let me say at the outset how grateful I am to all Members for their contributions to the six-hour debate that we have had so far today, and for the thoughtful consideration that has been given to this part of the Bill. I assure the Committee that I shall listen carefully to, and take very seriously, all the views that are expressed on these issues. The Government have been clear about the fact that the Bill is about continuity, certainty and control. That applies equally, and without exception, to people in businesses in all parts of the United Kingdom. Clause 11 is about delivering certainty while guaranteeing all the existing powers of the devolved institutions. The current devolution settlements reflect the UK's membership of the EU, and on that basis, they provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law.
I apologise to the Minister for interrupting him so early in his speech. Many members of his own party have said that clause 11 is deficient and requires amendment. Does he believe that, and, if so, how does he intend to amend it to make it less deficient?
I will set out the Government's position in due course during my speech. The hon. Gentleman intervened within 30 seconds of the beginning of my speech, and he is not accepting the answer that I have barely been able to give. I hope he will appreciate that I have a speech about the amendments to get through. When it comes to the clause itself, however, we are interested in the views of all Members and all devolved Administrations, and, above all, we are seeking a legislative consent motion. We are determined to approach the clause with a view to consensus. As I was saying, the current devolution settlements provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law. That has provided common, overarching laws and approaches throughout the UK while we have been in the EU. Those common approaches and laws have meant that businesses, regardless of where they are based in the United Kingdom, can trade with each other in the knowledge that they share agreed standards.
The Minister is making an important point about businesses being able to trade. Given the amendments that we have been discussing and the importance of consultation with the devolved Administrations, will the Minister tell me whether the proposals that were put forward in Brussels today on the Northern Ireland-Irish border were discussed with the First Ministers of Wales, Scotland or, indeed, Northern Ireland?
It is not for me to comment, during a Committee stage, on the process of European negotiations. There is a time and a place for that. I am not going to get into a discussion with the hon. Gentleman about the process of EU negotiations. We must ensure that the Prime Minister has the opportunity to reach out to Brussels, but I am here to discuss clause 11 and schedule 3 and the amendments, and I hope that the hon. Gentleman will allow me to continue to do so. I was talking about the common approaches that enable us to trade with each other in the knowledge that we share agreed standards. We have agreed approaches on how to manage our common resources, and the UK can enter into international agreements knowing that we, as a country, can meet our obligations. As we leave the EU, the simple question is about where we need to retain the common approaches in EU law and where we do not. In the immediate term, clause 11 and part 1 of schedule 3 create a mechanism for those common approaches to continue to apply throughout the UK after exit.
The Minister speaks of common approaches across the EU. We have heard today about the possibility of an alignment between the Northern Irish arrangements and those of the Republic and the rest of the EU. How will we retain those common approaches if, for instance, the UK negotiates a new trade deal post-customs union, and we end up with circumstances in which that would, or would not, apply to Northern Ireland? How on earth can the Minister reconcile that with the offer that the Government have been talking about today?
I note that the hon. Gentleman has just walked into the Chamber. He is welcome to make a speech later on setting out his own principles; I would listen to that very carefully. I am addressing clause 11 and schedule 3 to the Bill. There is a time and a place for the wider discussions he wants.
On the temporary nature of these proposals, why have the Government not chosen just to put in place a sunset clause? Why is no date indicated, because the lack of one creates an enormous amount of uncertainty for everyone?
The issue around placing a sunset clause on this provision is that, in a way, it creates an artificial cliff edge. The sole purpose of clause 11 is to ensure that the UK statute book is complete on exit day. We want to ensure that we work towards common frameworks, and that we can ensure that, when we have that statute book prepared for exit day, we have common frameworks and non-common frameworks in place. Having a sunset clause creates an artificial cliff edge to work towards that date, whereas we might want to create some of those frameworks before that date, and there might need to be some corrections to the withdrawal agreement and the EU withdrawal agreement Bill that has been announced, and some deficiencies that need to be corrected. Having a sunset clause is therefore unhelpful for the purposes of this clause in itself. Returning to the issue of the policy areas where EU law intersects with devolved competence, as I have said, common frameworks will not always be required, or can be achieved through non-legislative means like concordats, and in such cases clause 11 provides a mechanism to release decision-making powers from the temporary competence arrangement through the Order in Council procedure, giving new powers to the devolved Administrations.
I am listening carefully to the Minister's speech, but I am not hearing much about addressing the concerns of the devolved Parliaments and Assemblies, which are clearly saying that what is being proposed drives a coach and horses through the devolution settlement. How on earth is the Minister going to take on board their real concerns about what this Bill does to devolution, not least through clause 11?
I have listened for six hours to the concerns of Members, but outside this Chamber there is an entire process that I want to touch on later in my speech, and which I hope the hon. Gentleman will reflect upon. There might be hostility in this Chamber from those who say that the Government are somehow taking clause 11 and ripping up the devolution settlement, but that is hyperbole. Clause 11 is a temporary competence limit that is being applied simply by taking EU law and it becoming EU retained law.
Will the Minister give way?
No, not at the moment. There are no powers that the devolved Administrations currently have that they will be losing. We have therefore had tremendous engagement on the framework that we are delivering, and I will touch on that engagement shortly. In particular, in the JMC (EN) process there has been huge good will from the colleagues of the hon. Member for Perth and North Perthshire (Pete Wishart) in the Scottish Government, and his officials, above all, working tirelessly behind the scenes, trying to deliver on what we need to do.
The Minister uses the word “temporaryâ€. How long is temporary, and why is that not specified in the Bill?
The hon. Gentleman points to the word “temporaryâ€, and I repeat that this is a temporary competence limit- He wants to know how long temporary is. It is as long as it takes to ensure that we have a complete statute book that is in the interests of continuity, certainty and control for UK businesses. We want to ensure that we have time to be able to correct the statute book and ensure that this is done properly. To create an artificial time limit would be unhelpful to this process. As he knows, the First Minister of Wales is going forward with the JMC (EN) process. That engagement is taking place, and I will talk about that later in my speech. This means that when it comes to ensuring that we have the temporary competence limit on the face of the Bill, the Order in Council process gives new-
Will the Minister give way?
No, I have given way a lot- I am going to carry on with my speech; otherwise I will not get through it. Other Members want to speak, and although I could stand here and take up all the rest of the time, I think it would be inappropriate to do so. The Order in Council procedure will provide an opportunity for those powers to be returned to the devolved Administrations. This highlights a well-established procedure for adapting the parameters of the devolved competence, which requires debate and approval in the UK Parliament and the relevant devolved legislatures. It is absolutely right that the devolved legislatures are able to debate and consider any additional areas of competence being released to them through this mechanism. Of course we acknowledge that the Scottish and Welsh Governments have taken a different view on the mechanism to provide the necessary certainty, but we are in agreement that common frameworks will be needed in some areas. In some cases, legislative frameworks might be required, and we hope to continue working closely with our counterparts in the devolved Administrations to establish exactly what those will look like.
I am puzzled. The Minister has made it clear that the Government's intention is to maintain the current legislative situation, so far as the clause is concerned. Why then did he not seek agreement with the Welsh and Scottish Governments before he brought this legislation to the Chamber? Why did he not achieve a resolved position before coming to the Chamber with the Bill?
The hon. Gentleman will be aware that the clock is ticking, and that we have a limited amount of time in which to ensure that our statute book is prepared for exit day. We are determined to do that, because we need that certainty, control and stability. Businesses need to know that the statute book will be complete on exit day. We have had a tremendous amount of engagement with our Welsh and Scottish partners, and I am perfectly happy to place in the Library records of the meetings between the First Secretary of State and his counterparts so that Members can see the level of engagement involved. I think that they would be quite struck by the number of meetings that have taken place and the work that has gone on behind the scenes. Members might be hostile in the Chamber today, but their Welsh and Scottish counterparts are working constructively with the UK Government because they recognise that we need some serious politics here and that we need to ensure that we have certainty and control for businesses.
Will the Minister give way?
No, only once for each person. I will give way to the hon. Member for Central Ayrshire (Dr Whitford).
Why will having a Brexit date give certainty and clarity, yet having a date on which the powers would move to the devolved Governments is considered unacceptable?
We will be discussing the clause 10 powers to which the hon. Lady refers on a separate day-on the morning of day five. Clause 11 is about ensuring that the statute book is prepared for exit day. In a way, exit day provides that temporary limit. We know that we need to make changes to the common framework, but beyond that, we do not yet know what the negotiation period will look like when it comes to ensuring that we need an implementation period. That is why we cannot necessarily provide that certainty.
I will give way to the hon. Member for Ilford South (Mike Gapes) now.
I am grateful to the Minister for giving way. Clause 11(3) refers to the Northern Ireland Assembly. Is the position for Scotland and Wales the same in the Bill as it is for Northern Ireland, given that the Good Friday agreement is underpinned by an international treaty between two countries and that it explicitly mentions the European Union?
We are moving on to some of the clause 10 issues around international obligations, but when it comes to schedule 3, which I had hoped to touch upon later in my speech, we are determined to ensure that we obtain legislative consent from all the relevant devolved Administrations. Although the Assembly is absent, we are already working with officials in Northern Ireland to ensure that their perspective is reflected, but we are determined to move forward as the United Kingdom, which includes Northern Ireland.
Does the Minister envisage requesting the legislative consent motions before explaining what amendments the Government are going to make to the Bill?
As I have stated, the Government's intention is to seek legislative consent for the Bill from all the devolved Administrations, where possible. We have already seen legislative consent memorandums being tabled in Scotland and Wales, and we are determined to ensure that we work with all our devolved partners and with officials in Northern Ireland and that we legislate on behalf of the United Kingdom.
When?
I am going to carry on with my speech. The hon. Gentleman has already intervened and now he decides to-
I may be able to save the Minister a job here. New clause 64 includes what he is reading out, word for word. Given that he supports the principles, is he not inclined to accept new clause 64?
The hon. Lady did not touch on the communiqué and seemed to push it to one side without acknowledging the importance of the process. When the JMC (EN) process is taking place, her new clause is unnecessary. I will touch on why it is unnecessary to legislate when we have all this work ongoing to provide flexibility for the devolved Administrations to draw up a communiqué exactly like this one. To carry on with what I was saying, common frameworks will“enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the UK.â€The frameworks will also“respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore: be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent; maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; lead to a significant increase in decision-making powers for the devolved administrations.â€In the absence of Northern Ireland Executive Ministers, the Northern Ireland civil service will continue to be part of these discussions. We are building on the positive and constructive joint working between our Administrations to continue to accelerate our progress on common approaches. For example, there is ongoing work between officials from the devolved Administrations and the UK Government on how policy areas intersect with the devolution settlement. There have been several deep dives into those policy areas, and the work will be presented at the next JMC (EN) on 12 December, where we hope to make further progress by assessing more of the detailed work that has been carried out.
How does the UK Government's approach to working together with the devolved Administrations differ from their approach to working together with, say, Dublin and the other members of the EU27? Is one not a meeting of equals and the other a meeting of master and underling?
The work on the common frameworks that clause 11 addresses points to the fact that we are keenly working with the devolved Administrations on drawing up those frameworks. We have an absolute commitment to ensuring that we can look at the principles that were agreed between our Governments on 16 October and that explicitly recognise that frameworks will not be needed in many of the areas currently governed by EU law. As we have said from the outset, the Bill starts a process that will lead to a significant increase in decision-making powers. That is not a power grab. We are ensuring that more powers go back to the devolved Administrations and legislatures.
The Minister talks about the constructive relationship with the devolved Administrations. Has he taken time to look at what they have said about the shambles today?
A bit of a wasted intervention. I am here to talk about clause 11. I do not know whether the hon. Gentleman has read the clause, but he came in slightly late.
I came for your speech.
The hon. Gentleman is very kind, but we are discussing the effect of clause 11 and schedule 3 -that is the purpose of Committee.
I have already given way. We want to build momentum over the coming months in the continued bilateral and multilateral discussions between Ministers and officials. Let me be clear that the Government are the party committed to devolution. Our record shows that, and we will continue to press on with devolution. Working through these frameworks is part of that, but we also want to protect the benefits of our Union across the UK and across each of our constituent nations, benefiting us all.
Will the Minister give way?
No. I am grateful to hon. Members for raising important points of detail on the ongoing framework process. They are right to acknowledge that work has been done today on agreeing the guiding principles for the future frameworks, and that the further analysis is the product of the ongoing engagement between officials and Ministers in the UK Government and the devolved Administrations. Of course, the outcomes of those discussions are important not just to Governments but, most crucially, to the people and businesses across the UK to whom the rules apply.
The Minister is talking about the impact on people in the UK. Under the Good Friday agreement, people in Northern Ireland can choose to be British or Irish, or both. Will that remain the case after Brexit? If so, seeing as Ireland remains a member of the EU, will people in Northern Ireland still be able to choose to be EU citizens?
I feel that the Minister may be finishing his remarks. I intervened at the beginning of his speech to ask whether he would tell us where he thinks clause 11 is deficient, as many of his colleagues have said it is, and how he thinks that, as the Minister responsible for it, he is going to fix those deficiencies.
As I stated at the opening of my remarks, and as I will state throughout my speech and at the end of my remarks, we are open to hearing from those who seriously want to look at this Bill and consider how we productively ensure that our statute book is complete on exit day. We are in a Committee stage at the moment and there is a process to go through here, and there is a process outside this House in the JMC, which I have spoken about. It is not for me as a Minister to prejudge the discussions that may take place at JMC (EN) next week, on 12 December. What I will say is that I will ensure that when it comes to the agenda of that meeting, the discussions that have taken place in Committee are reflected and discussed in JMC (EN).
I thank the Minister for what he is saying, but it is clear that the Welsh Government and the Scottish Government, and Members of this House working with them, have proposed clear and specific amendments that are not about blocking the Bill or undoing Brexit; they are about retaining a stable constitutional settlement in these islands. Will he accept those amendments, as his colleague the Secretary of State for Scotland said he might?
Surely the determination is very simple. It is set down in the Scotland Act 1998 that what is not reserved is devolved, so if it comes from Europe, it will be devolved. It is set down and it is simple. It should not be up to the Minister to be judge and jury. He talks about partnership, but he should respect the law.
The hon. Gentleman talked earlier about co-operation and listening. Our party represents the Government of Scotland. Then there is the party that represents the Government of Wales. In this spirit of co-operation, which amendments will he be taking from either of those parties?
I am currently going through the list of amendments and setting out the Government's position on them. When it comes to looking at the Bill, the Government will listen to those who seek to improve it constructively. We are in Committee at the moment, and we have amendments and legislative consent memorandums that have been tabled by the Welsh and the Scottish Governments. The Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker), and I have been to Scotland to give evidence. My hon. Friend has also given evidence to Welsh Select Committees. We are determined that it is not just SNP Members who have a veto over this process. There is a consensus that we need to seek across all devolved Administrations-
I have given way to the hon. Gentleman several times; I will not do so again.
Will the Minister give way?
The Minister is addressing the amendments in my name and those of my hon. Friends. The hon. Member for East Renfrewshire (Paul Masterton) said that he agreed with the principles of my amendments 164 and 165, and that, although he would not vote for them, he expected that the Government would come back with something different to deal with the deficiencies in clause 11. I have not quite heard the Minister admit that the clause has deficiencies. What will he bring back to the Committee that it can vote on that will satisfy his own Scottish Conservative Members with regard to the principles of amendments 164 and 165?
I have already stated that the Government are prepared to listen to all those who seek to improve the Bill. We will use this opportunity to reflect on all the speeches made by hon. Members in Committee; that is what Committee is for. I have stated a commitment to ensuring that the content of today's debate is shared with all members of the JMC (EN) on 12 December. There is a process to look at the establishment of common frameworks, and the careful analysis needs to take place with the consent of or working with the devolved Administrations and their officials. I am pleased that we have made good progress on this with the agreement at JMC (EN) with the Scottish and Welsh Governments on the principles that will guide our future framework discussions.
The Minister is being generous in giving way. My name is on a number of these amendments. Will he be absolutely clear on one point? The Welsh Government and the Scottish Government have tabled amendments in good faith that are aimed at being constructive and making the Bill more sensible, with the support of many Members across the Committee. Indeed, Members of the Minister's own party have pointed out problems with the Bill. Am I correct that, despite those points, he is not going to accept any of the amendments?
The hon. Lady says that the plan is ambitious, but, in practice, waste from Scotland is simply being transferred into England, and there is very little enforcement of the so-called zero waste plan.
indicated assent.
indicated assent.
The Ministers are nodding their heads. If that is the case, why have they not identified them? Why not bring forward proposals for dealing with the joint arrangements? I do not attribute malintent to those on the Government Front Bench, but there are people within the Conservative party-I see that the Scottish Tories have gone home- I am sorry; they have left the hon. Member for Gordon (Colin Clark) as the lone representative. Two of yer! I withdraw the remark; only 80% of them have gone home. Conservative Members talk about the process we are engaged in. We are engaged in a process of considering amendments to a Bill. I say to the Scottish Conservatives that they should think again about going through the Lobby with the Government tonight, because if they do so, they will give the Government succour, rather than putting pressure on them to come forward and make agreements and changes. If that happens, it will provide sustenance to those Conservative Members who never believed in devolution in the first place, and who will use Brexit as an opportunity to roll it back and take power to the centre.
We have heard a great deal about clause 11 tonight. My right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) described it correctly earlier, and even Conservative Members representing Scottish constituencies admitted that it was faulty in its current form. Indeed, it is nothing more than a power grab which is fatally undermining the devolution settlement in all the nations of the United Kingdom.
I thank my hon. Friend for giving way so early in his speech. I do not know whether he has seen the coverage of last week's rural broadband debate, during which Scottish Tory Members shouted across the Chamber, “Strip the Scottish Government of their powers.â€ That is their attitude. There is no doubt that there is a power grab at stake.
I begin by echoing the words of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), because clause 11 is an unashamed power grab; it is undermining the devolution settlement, and it drives a coach and horses through devolution across these islands. In the time that I have to speak, I will talk about the impact it will have on farming, particularly in my Argyll and Bute community. It is generally accepted that Scottish farmers, particularly farmers and crofters working the land on the west coast, face vastly different challenges from farmers in the rest of the UK. Not only do Scottish hill farmers toil with some of the poorest land, but they face additional challenges from climate, geography and topography, and so much so that 85% of Scottish agricultural land is classed “a less favoured areaâ€ compared with just 17% of English agricultural land. Given that Scottish farmers face specific challenges, surely it stands to reason that they need a bespoke solution that recognises the vast differences that exist across these islands. It is understandable that the Scottish Government and the Scottish farming community are demanding confirmation that all powers relating to agriculture post-Brexit will automatically be passed to the relevant legislature-in this case, the Scottish Parliament. I fear that this Government are taking us down a dangerous road. They are deliberately proposing fundamentally to alter the basic principles of devolution.
The hon. Gentleman has mentioned the word “roadâ€, which prompts me to intervene on him. When the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and I-and indeed the hon. Member for Argyll and Bute (Brendan O'Hara)-drive to the west, we see big signs telling us that the road was built with the assistance of the EU. One of the biggest questions in the minds of my constituents is: what will replace that funding stream? This relates to the ability of farmers and crofters to access their beasts.
The hon. Gentleman is absolutely right. This is why my constituency, his constituency and the constituency of my right hon. Friend the Member for Ross, Skye and Lochaber all voted to remain in the European Union. As things stand, all the powers connected to agriculture will go to London post-Brexit. It will be London that decides what happens.
My hon. Friend is making a first-class contribution to the debate. I declare an interest as a crofter. Is it not the case that the UK Government have form on this? When they were given convergence uplift money in 2013, there was a distinct intention that 86% of those funds should come to Scotland, yet they have given us only 16%. The Secretary of State for Environment, Food and Rural Affairs, who is sitting on the Front Bench, made sure that Scotland did not get what it should have done. We have been short-changed by Westminster. It is little surprise that we do not trust Westminster to look after us in this regard.
I thank my right hon. Friend for that intervention. I will touch on that issue in a moment. Let us be clear that this is not just an SNP argument. The National Farmers Union of Scotland has made it absolutely clear that any move to impose what it describes as “DEFRA-centric policyâ€ is completely unacceptable to Scotland. I agree wholeheartedly with the union when it states:“The Scottish Government must retain the ability to manage, support and implement schemes, policies and regulations as it currently doesâ€. If the UK Government are serious about protecting Scottish agriculture, I suggest they listen to the president of the NFUS, Andrew McCornick, who has made it clear that the union's priorities include securing friction-free trade, access to skilled labour and a support package specifically designed for Scotland. He was absolutely spot-on when he said that maintaining access to the single market and the customs union was essential for Scotland's farmers. On today of all days, if a deal can be found for one part of the United Kingdom to remain in the single market, there can be no other reason than political pig-headedness that such a deal cannot be found for Scotland.
Does my hon. Friend agree that, if immigration powers were to be devolved to the Scottish Parliament, that would allow us to make provisions for agricultural workers? That was proposed by the Environment Secretary, who is on the Government Front Bench at the moment.
I could not have put that better myself. My hon. Friend is absolutely correct. We have heard much today from the hon. Members for Banff and Buchan (David Duguid) and for Stirling (Stephen Kerr) about trust. They said that we should trust the UK Government to do the right by the Scottish farming community, but why would the Scottish farming community trust this Government to do the right thing? This is a Government who shamelessly robbed the Scottish farming community of the convergence uplift, and I doubt that that community will ever trust them again. The Government have to recognise the hugely important part that the Scottish farming community plays, economically and socially, in our lives. It is a vital component of our rural economy. It keeps the land productive and, in many cases, it is members of that community who keep the lights on in the glens of Argyll and the west highlands. I fear that London and Whitehall do not understand that community. In conclusion, Brexit is a huge challenge for the Scottish farming community. Without a deal on agriculture that does not return legislative competence from Brussels to the Scottish Parliament, Brexit poses an existential threat to Scotland's farming communities and will be a disaster. Tonight is the first real test of whether the Scottish Conservatives, who are wrong on a whole host of issues, actually put Scotland's interests first; or are they, as many suspect, simply the Conservative party on manoeuvres in Scotland? They know that, if they choose to vote with the Government tonight and let the Bill go unamended, the result will be catastrophic for Scottish farming. What comes first: their loyalty to the captain of a sinking ship or to the rural communities of Scotland? Be in absolutely no doubt that no serious person believes that lumping Scotland in with the rest of the UK on agriculture is a good thing. This is a litmus test for the Scottish Tories, and I look forward to joining them in the Lobby.
After eight hours of debate, during which I lost count of the number of contributions, I do not think I heard a single speaker on either side say that there was not an issue with clause 11. The Minister seems to accept that it has some deficiency, yet after eight hours he will not say what he thinks it is or how he intends to remedy it. He has not seen fit to accept a single amendment or new clause put before him today, despite saying he welcomes reasonable, practical contributions. For that reason, I shall seek to put new clause 64 and amendment 42 to the vote.
I beg to move, That the clause be read a Second time.
Will the hon. Lady give way?
Of course; I would be delighted.
I do not think that I am one of the senior members of my party whom she is criticising. Does she agree that the Prime Minister, 48 hours ago, reached an agreement with the Taoiseach that seemed to show that the Prime Minister shared the hon. Lady's concerns? We cannot have an open border without having some regulatory and customs convergence on both sides. That all came to an end when the DUP vetoed it, which makes it extremely important-more than it was-that her new clause be put into the Bill to make sure that we are not back-sliding. Of course, the DUP could always rescue its reputation by confirming that its only objection was to not having regulatory and customs convergence across the whole United Kingdom, and by agreeing, as she and I do, that regulatory and customs convergence across the whole island of Ireland is in the interests of inhabitants on both sides of the border.
That was very interesting. Lots of points were raised there. The DUP will have to speak for itself, and I am sure that at some point this afternoon, its Members will want to contribute to the debate. I am hugely grateful to the right hon. and learned Gentleman for confirming that he feels that the Government should accept my new clause; I thank him. I felt deeply embarrassed for the Prime Minister on Monday. What was so interesting in her demeanour during Prime Minister's questions today was her confidence at the Dispatch Box, and her response to the hon. Member for Strangford (Jim Shannon), who had a question on the Order Paper. It was a very interesting question, and the Prime Minister's reply was significant. She seemed so calm, not that she does not normally seem calm-forget about the party conference; that was a very difficult experience for her, and we would not like that to happen to any of us. I suspect that she has spoken a lot to the leader of the DUP since Monday; that is what I hope, but I am not in that inner circle. I am not a member of the DUP, and its members do not come along to me and say, “Here's the draft memorandum; have a look at it.â€ I hope that I am right in saying that there has been progress. If I am not, I am sure that a DUP Member will quickly get to their feet to contradict me, and they are not doing that.
I did not think it was worth it.
Well, that is very disappointing.
Could the hon. Lady answer the question posed by the right hon. and learned Member for Rushcliffe (Mr Clarke), who asked whether she accepts, as he does, that it is a good idea to have regulatory convergence and common rules between Northern Ireland and the Republic? Could she give a straight answer to that, because many in Northern Ireland now view her as being on the side of the Dublin Government on these issues?
I thank the right hon. Gentleman so much for that. Yes, what do you do in response to that?
Answer!
I can hear. If the right hon. Gentleman gives me a chance, instead of chuntering away, I might actually reply to him. The Prime Minister, and yesterday the Secretary of State for Exiting the European Union, made it absolutely clear-at least this is what I understood by the Secretary of State's statement-that it was always the intention of the Prime Minister and the Government to have the same regulatory alignment right across the United Kingdom. For the record, if the right hon. Member for Belfast North (Nigel Dodds) wants me to say this again, I am a Unionist. I am not in the pocket of, am not propping up, and have not spoken to, the Dublin Government, and I strongly resent the implication, in his question, that I am doing that.
The hon. Lady and I have got on very well since entering the House together-16 years and I think four months ago, as the Speaker might say. Does she agree that my right hon. Friend the Member for Belfast North (Nigel Dodds) asked her a very specific question relating to what the right hon. and learned Member for Rushcliffe (Mr Clarke) said about convergence across the island of Ireland? In the few minutes that have elapsed since then, I have not heard an answer to it.
I am most grateful to the right hon. Gentleman-or the hon. Gentleman; I just promoted him. That is not what I understood, so there is no point in putting up a straw man for me to knock down. I understood that the proposal that the Prime Minister took with her to Brussels was always to have been that the entirety of the UK should have the same alignment. The Prime Minister is no one's fool. She has made it quite clear that she will protect the integrity of the whole United Kingdom. She had already ruled out having a border down the Irish sea. I therefore believe and trust that when she went to Brussels, she had always planned that there would be convergence throughout the United Kingdom, and that Northern Ireland would not be treated differently from the rest of the United Kingdom. That is the confidence that I have.
The hon. Lady may share with me a certain amount of bemusement. There can be no question for me, as a Unionist, of a separate regulatory arrangement for Northern Ireland, permitting it to have regulatory equivalence or convergence with the Republic. Convergence either applies to all of us, or cannot apply at all. I have to say that all of us having regulatory convergence with the Republic, and indeed the rest of the EU, strikes me as a very good idea.
I am grateful to my right hon. and learned Friend. Even though he sits on the other side of the Chamber, I have always regarded him as a friend. He has just summed up how I feel. I will not stand here and criticise our Prime Minister-she is the Prime Minister of the United Kingdom, and I believed that her stance when she went to Brussels on Monday was that the convergence would apply to all of the United Kingdom. I did not believe for one moment that she would cast Northern Ireland off somehow to a regulatory framework and convergence on the island of Ireland, and not with the rest of the United Kingdom. Of course, I do not want Northern Ireland to be treated any differently from the rest of the United Kingdom. We are all coming out of the EU-sadly-on 29 March 2019. The referendum result in Northern Ireland was in favour of remaining, but the UK-wide result will be honoured. The Prime Minister has said that repeatedly. As we move towards that, I urge and encourage the Government to adopt, in some form of words, new clause 70, because the principles of the Good Friday agreement, which I and the other Members who have put their names to the new clause are proud to support, must be protected in black and white on the face of that Bill. That is the assurance I need from the Government this afternoon, otherwise I will test the House's commitment to the Good Friday agreement.
I do not intend to speak at length. I listened carefully to the hon. Member for North Down (Lady Hermon) and I completely agree with all the sentiments she expressed about the benefits that the Good Friday agreement has conferred on our country generally and on our international relations with the Irish Republic. It has been a step change in improving the quality of life for all citizens in this country, particularly those in Northern Ireland, about which the hon. Lady spoke so eloquently. It is clear that the Brexit process is challenging in the context of maintaining those benefits. I regret that, during the referendum campaign last year, those of us who highlighted the consequences that could flow did not get as much register as we would have liked. In the cost-benefit analysis between staying in and leaving the EU, the Good Friday agreement was a factor that should have been taken into account properly, but I regret to say that some of the enthusiasts for our leaving the EU seem to have systematically ignored it. However, we are where we are. It is clear that we will have to try to manage the Brexit process in a way that does not adversely impact on the Good Friday agreement. I listened carefully to DUP Members, and I can well understand that any suggestion that leaving the EU involves uncoupling Northern Ireland and putting it into a separate regulatory regime for the benefit of maintaining the Good Friday agreement, or regulatory equivalence with the Republic of Ireland, is a complete non-starter. It is totally unacceptable to me, and I did not understand the Prime Minister's words and the agreement she reached as being indicative of her intending to do any such thing. If she was, all I can say is that she will not long survive her party's views, which are unanimous on this matter, irrespective of whether Members most enthusiastically embraced Brexit or most vigorously sought to prevent it. We therefore need to park that on one side.
I agree with much of what the right hon. Member has said, and I commend what was said earlier by the hon. Member for North Down (Lady Hermon). Does the right hon. Member agree that the Government need to recognise that if they are to take courage, it will be from the peoples of Northern Ireland who endorsed the Good Friday agreement on an 81% turnout and voted 71.2% in its favour, and that the Government should listen not to the ne-er-do-wells on the Back Benches of any political party but to the cross-party, cross-community roots in Northern Ireland?
I completely agree with the hon. Gentleman, and I think that this is a good way for me to end my speech. The hon. Member for North Down said exactly the same: if the Good Friday agreement meant that one person's life was saved, it was worth supporting. Northern Ireland is an example of how people can put aside rhetoric and long-held beliefs, and come together to secure a peaceful, prosperous future for all generations, including generations to come. That is what the Committee must do now: it must find the compromises and find the solutions so that we can come back together, get on with the rest of what we have to do, and deliver a Brexit that works for everyone.
It is a pleasure to follow the excellent speeches of the right hon. Member for Broxtowe (Anna Soubry), the right hon. and learned Member for Beaconsfield (Mr Grieve), and of course the hon. Member for North Down (Lady Hermon). I was not planning to speak at great length about new clause 70 and other issues this afternoon, but I was profoundly moved by what she said. I think she speaks for many people in Northern Ireland whom I know and love, and it is a shame that there are not more voices like hers calling for that moderation and focus on what really matters, which is peace and stability.
When indicating the substantial contribution and progress made in recent decades in Northern Ireland, I caution the hon. Gentleman and other Members against attributing that in total to the process that started in 1998. The ceasefires-among those who should not have started killing people in the first place-commenced in 1994, four years before the Belfast agreement. So a process of people converging, to use the in-phrase, in a very realistic way away from violence and towards embracing peace had begun long before the Belfast agreement. I say that merely to bring a note of historical accuracy to the debate, as we are in danger of rewriting the past, as many do in Northern Ireland.
Indeed, many men and women of courage and conviction on all sides in that process pushed forward the need for peace and stability and an end to the violence and killings on all sides. I pay tribute to all of them, including some of the many fantastic individuals whose names we do not know; I think particularly of those in the Quaker community and others who worked behind the scenes so tirelessly to bring sides together. This is clearly a process over many years, and it is not yet fully resolved; there are still some who would seek to undermine that process, and that stability and peace. This touches me as well. My family served in Northern Ireland in the British Army. Parts of my family originate from what is now the Republic and others from Northern Ireland itself-the Cassidys in my family came from Northern Ireland over to Kirkcudbrightshire in Scotland. I have friends, too, in all parts of the island of Ireland. In fact, I travelled as a young member of the Welsh Labour party to a conference organised by an organisation called Encounter, which brought together young members of all the parties in all parts of the British Isles and the Republic of Ireland. Despite having those family connections and having heard the tales from those in my family who had served, I was utterly shocked and astounded to walk through the Falls and the Shankill roads, to see the peace lines and to hear the stories of those from all sides of the conflict whose lives had been so dramatically affected and who had lost loved ones. It is incumbent on all Members in all parts of the House to remember where we were, where we have come from and what remains to be done.
Speakers today, particularly the hon. Member for North Down (Lady Hermon), the right hon. Member for Broxtowe (Anna Soubry) and my hon. Friend, have reminded us of how the troubles affected everyone in Northern Ireland. I visited Northern Ireland during those times. Brief mention has also been made, in particular by the hon. Member for North Down, of how the troubles affected us in this country. I was a child living in Birmingham when those bombs went off. My father was a magistrate and we had to look under the car every morning before getting into it to go to school. Of course , the Conservative party suffered the most appalling attack at its heart. The troubles affected us all-
My sincere apologies. Does my hon. Friend agree that we were all affected by the troubles, and that this is an opportunity to remind the House that we cannot go back to those days? This debate is so important for that reason.
I wholeheartedly agree, and who can forget the Warrington bombing, for example, and the many other tragic events that affected young and old and people from all walks of life, in mainland UK as well? How extraordinary it is that we would even contemplate putting any of the progress that has been made at risk. It was particularly important to hear what the right hon. and learned Member for Beaconsfield and the right hon. Member for Broxtowe said. This goes beyond party politics and wider issues that we will have disagreements on in this House. This is about stability, peace and the constitutional settlement, and, ultimately, respect for the will of the people on the island of Ireland about their future. It is about understanding where that lies. It is not about games that some might choose to play for other purposes around this whole Brexit process. That also draws into stark relief the role the EU has played in being a force around peace processes and stability, and not just in the UK. I do not claim that the EU was responsible for all the progress in Northern Ireland. I do not claim anything of that nature, but we have seen the role it has played in preventing a further outbreak of violence in Cyprus and in encouraging countries and different communities to come together in the Balkans. This was substantially lost from the debate we had around the referendum. Our coming together in Europe around shared values, peace and stability has helped to bring people together.
I am listening very carefully to what the hon. Gentleman is saying. Of course none of us here-heaven forbid-would use this situation to do impure things like politics, but does he agree that there are those who would seek to manipulate the current situation for other goals? I am thinking in particular of the French intention to take business from the City of London and of some-I emphasise some-in Dublin who perhaps see an advantage in the current situation, which has led to a lot of discomfort on the island of Ireland.
The hon. Gentleman refers to the importance of having stability. Does he also think it important to have legal certainty, and therefore to have mechanisms to ensure that our laws work well and quickly as soon as Brexit happens?
Indeed, but why did the Government reject the amendments that we tabled on putting the Joint Ministerial Committee on a statutory footing and on establishing framework-making powers? Many of those amendments would indeed have provided legal stability. The hon. and learned Lady surely knows that many of the legal powers in these areas are devolved in relation to both Executive and legislative competence. I am sorry to say that the attitude of UK Government Ministers has worsened in the last few days. The Brexit Secretary yesterday described the Welsh First Minister and the Scottish First Minister as “foolishâ€. That is hardly the attitude that we expect, especially when Ministers keep telling us that we are in a relationship of respect.
Would the hon. Gentleman agree, however, that Ministers in the Welsh Assembly and the Scottish Parliament have called UK Ministers of the Crown far worse things than “foolishâ€?
It is really important that all the devolved Administrations retain powers, and it has been said that they will actually increase their powers, which overall would be a good thing. The hon. Gentleman has stated, however, that there will be a reduction in powers for Wales. Does he accept that that cannot be the case in circumstances where it is stated for all the devolved Administrations and all the devolution Acts that the UK Parliament has the power to change the laws of the devolved Administrations? Therefore, as a matter of law, the UK Parliament already has the power-under section 28 of the Scotland Act 1998, section 107 of the Wales Act 2006 and section 5 of the Northern Ireland Act 1998-to change the laws of those devolved Administrations.
I would gently say to the hon. and learned Lady that I do not think she fully understands the legislation or the devolution settlement. The big point that was made by the Secretary of State for Wales in the passing of the Wales Act 2017 was about the permanency of the Assembly and the Welsh Government and their powers and responsibilities. This Bill undermines all that. It opens up a back door to allow the UK Government to amend, by Executive fiat, the very legislation that establishes the Welsh and Scottish Governments and the two legislatures. That is an extraordinary situation, and it should not be the case.
I agree with the thrust of the hon. Gentleman's argument, but in relation to a point made earlier, why would anyone in this House ever give powers to or take back powers from the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly without the proper scrutiny of this Chamber?
Indeed. I might have taken some Ministers at their word in the past, but there are others who would love to take back powers or to act without reference either to this Chamber or to the Chambers of the devolved legislatures, as we have seen on a whole series of issues. Ultimately we would end up in the Supreme Court, wasting lots of taxpayers' money and in dispute. That cannot be the way to keep stability in the constitutional settlement. My amendments are in no way intended to wreck the Bill or to undermine the process that the Government have set out, but they are absolutely essential to maintaining a stable settlement with Wales, Scotland and Northern Ireland. The events of the past 36 hours have shown why the Government have simply not paid enough serious attention to the unintended consequences of their various grand rhetorical statements. I will therefore seek to press amendment 158 to a vote at the appropriate time.
I am glad that the right hon. and learned Gentleman has returned to the veto, because vetoes have been mentioned several times in the debate thus far. Does he agree that what has been thoroughly unhelpful in the past 10 days is the arrival of Donald Tusk in Dublin, in effect to hand the Irish Taoiseach a veto by saying, “We in Europe stand with you, and whatever you want, we will back you.â€?
indicated dissent.
To give everybody a little break, I shall give way to the right hon. Gentleman.
Given the thrust of the hon. Gentleman's amendments, has it occurred to him that these powers were ceded to the EU in order to maintain an integrity of the internal market? Equally, when these powers return to the UK, there will be a need, in the interests of many Scottish businesses, to maintain the integrity of the UK market, which is of vital importance to the Kingdom of Scotland.
I have many face-palm moments when it comes to Tory Brexiteers and that was another one. To compare the internal market of the EU, with its independent member states, with that of the United Kingdom is astonishing and it demonstrates the lack of understanding of the EU that lay at the heart of vote leave and continues to lie at the heart of these arguments. It also misunderstands the state of the United Kingdom now. It is not the same state as it was 40 years ago. Devolution, whether one agrees with it or not, and I know that many Conservative Members would rather we did not have devolution, has changed the framework in which the United Kingdom exists. The right hon. Gentleman makes the point: we must have these powers devolved to the Scottish Parliament to make them work.
The hon. Gentleman and I agree on many of these matters, but I have to take him up on this point. It is not on to say that Conservative Members do not agree with devolution. Let us be clear that we do, which is why we happily voted for an Act-I believe in the last Parliament-that conveyed even more powers of devolution to the Scottish Parliament.
I thank the right hon. Lady for her point, but I should make it clear that I said that some Conservative Members have perhaps not come to terms with the devolved Administrations. If Ministers have come to grips with it and believe in devolution, and believe it should exist within a devolved settlement, they will back our amendments. If they do that, they will be able to prove me wrong in my point. I look forward to their backing our amendments and doing that later on today.
Will the hon. Gentleman give way?
Is this not one of the key differences? I refer to the undertakings the Scottish Government have given about how they will use the delegated powers that we are seeking through these amendments, as opposed to the naked power grab, through the Henry VIII clauses in this Bill, which we will come to on another day, by the UK Government.
My hon. Friend makes a good point about the power grab, but of course Government Members do have the opportunity to prove us wrong and back the amendments that have been drawn together in a cross-party way. I very much look forward to doing so.
We are speaking about a power grab. Will the hon. Gentleman confirm that the power grab the SNP wants is for Scotland to become independent and then give all these powers that he wants back in Scotland straight back to the EU?
Today is the day Finland celebrates its 100th birthday as an independent sovereign state, and it has no problem with full membership of the European Union and with the sovereignty that comes with it. I concede that sharing sovereignty is sometimes okay. Some Conservative Back Benchers, including the hon. Gentleman, may not agree with that, but sharing sovereignty in some areas with the EU is a good thing: on areas such as trade and the environment, there are benefits for his constituency as much as for mine. Such areas are crucial and we do not have a problem with sharing sovereignty on them. For instance, we would have our own say when fishing becomes a political priority in a way it never was for the United Kingdom Government.
Will the hon. Gentleman give way?
The hon. Gentleman should be in no doubt that amendments cannot be a Trojan horse and they cannot frustrate the democratic will of the people of the United Kingdom. The question is really simple: does he accept that the Bill is necessary, and that it is largely procedural?
It should not be incumbent on any Member of Parliament to pass any old law that the Government want us to pass. If this place does not believe that the Bill is fit for purpose, we have a responsibility to interrogate it. I suggest to the hon. Gentleman that he is allowed to make amendments. That is something that he, as an MP, can do. There are hundreds of amendments, many of them tabled by Opposition Members but some tabled by Government Members. I hope that, in due course, Scottish Conservative Members will start to table amendments to Bills, because that is something an MP is allowed to do and I encourage them to do it. If we do not think that a Bill is fit for purpose, we will not vote for it, and I would not expect any other Member to do otherwise. I pay particular tribute to the Scottish and Welsh officials who have worked so hard on this legislation over the past few months. Often, when we discuss amendments in Parliament we are doing so at the end of a process, but there are officials in the devolved Administrations and elsewhere working extraordinarily hard on this. The Secretary of State for Scotland said earlier that he will table amendments-at 500-plus days on from the EU referendum, I am glad to hear that-so will the Minister tell us when those amendments will be tabled? On a historical note, I noticed earlier that Brexiteers were hailing Henry VIII as a great Brexiteer. Henry VIII was never King of Scots, but he was responsible for the rough wooing of Scotland.
I am not going to woo the hon. Gentleman, but I thank him for giving way. Of course, Henry VIII and the Tudors originate from Wales-I am sure he knows about Tudor/Tudur and all the connections there. Given that we heard the Secretary of State for Scotland talking about amendments to clause 11, if we do not get the necessary changes to clause 10, would the hon. Gentleman welcome votes on amendments 158 and, possibly, 159, which I have tabled, to make sure that the Government cannot just amend the Scotland and Wales Acts willy-nilly?
I am glad that the hon. Gentleman made what will be, I am afraid, the final intervention, because he makes an excellent point. I agree with him wholeheartedly and thank him for bringing that up. Henry VIII's Welshness does not excuse the rough wooing, and nor does it excuse the Henry VIII powers taken in the Bill. We have to learn from history and we have to learn from bad legislation. Significant amendments need to be made because the Bill is not fit for purpose as it stands. I look forward to an extensive speech from the Minister in which he addresses the many points that have been made. Should the hon. Member for North Down wish to press her new clause to a vote, we stand ready to support her.
Thank you, Mr Streeter, for calling me to speak. I have sat through several of the Committee's debates so far, but have only been able to intervene. This is the first time I have had the chance to make a speech and give my take on the amendments before us. I feel fortunate to have been in the Chamber to listen to the speech by the hon. Member for North Down (Lady Hermon). We share something in common in that my wife is a police officer-just a sergeant in Keith, I have to say; not quite at the level reached by the hon. Lady's husband. When she spoke about the troubles in Northern Ireland and the efforts her late husband went to with so many colleagues, it touched a raw nerve for those of us who are so closely connected with our police, fire and ambulance services and the sacrifices they still make on a daily basis to protect us. I listened carefully to what the hon. Lady said about new clause 70. It is useful that we have had this opportunity to discuss the Belfast agreement, because although she gave a thoughtful and moving speech, I hope she accepts that nothing with respect to our departure from the European Union and, indeed, nothing in the Bill, will compromise the Belfast agreement. Her words were very useful in giving us an opportunity to discuss and debate this issue, but I am not sure it is necessary for us to support new clause 70, because there is already clear information to show that the Belfast agreement is secure.
The Good Friday agreement created cross-border institutions and policies that have been supported and, indeed, financed by the European Union, and lots of finance has gone into improving the border areas. That commitment is going to go when the UK leaves the European Union, so it is inevitable that the terms of the Good Friday agreement will be altered. My new clause would keep the changes to an absolute bare minimum, making only those changes that are absolutely necessary on account of Brexit.
I am grateful for that intervention, but the Government have been clear about their ongoing support for the Belfast agreement, and nothing that will materialise from Brexit or, importantly, the relevant clauses of the Bill we are discussing, will diminish that in any way.
The issue is not whether the Government are in agreement, but that they are co-guarantors of an international agreement.
I am not saying anything against that, but what I am trying to put across is that it is quite clear that there is support for the Belfast agreement without the need for new clause 70.
I accept everything that my hon. Friend is saying, and join him in paying tribute to the hon. Member for North Down (Lady Hermon), but does he not agree that perhaps this is a time where some form of underpinning of the Good Friday agreement, by one means or another, might be helpful in building trust?
My hon. Friend makes a valid point. We are doing some of that by debating this very issue today. By proposing new clause 70, the hon. Member for North Down has allowed us the opportunity to discuss that in this place today.
My hon. Friend is very generous in giving way. On the institutions that were set up under the Good Friday agreement and with regard to peace and prosperity on the border, does he agree that there is an ongoing duty on the European Union, established by article 8 of the Lisbon treaty, to promote neighbourliness, which will underpin all of the institutions to which the hon. Member for North Down (Lady Hermon) has referred?
I agree with my hon. Friend, and believe that it is useful to get that on record. I want to move on to the amendments on the devolved Administrations under discussion today. My constituency of Moray was split right down the middle on Brexit. Of all the 382 areas in the United Kingdom that counted the votes on the European Union referendum, Moray had the closest result of anywhere. Out of 48,000 votes, just 122 votes, including my own, gave remain the edge over leave. None the less, Moray did come within a whisker of being the only Scottish local authority to vote leave. Moray is not a bitterly divided community. Like most communities in Scotland, and indeed in the United Kingdom as a whole, people in Moray want Brexit to be done with as little disruption as possible. It is in that spirit that this Bill works to ensure that our statute book-our legal and regulatory infrastructure-continues to operate as normal after exit day. Due to the sheer amount of tweaks that will need to be made after more than four decades of our laws becoming ever more intertwined with those of the European Union, it is only right that the Government have delegated powers to effect those adjustments where appropriate. Likewise, in the light of our devolution settlement, it is only right that the Scottish Government and the other devolved Administrations have delegated powers to make their own adjustments where appropriate.
Does the hon. Gentleman accept the concerns that have been raised by the Law Society of Scotland on the areas of this Bill relating to the separate legal system in Scotland?
I know Michael Clancy very well, and have seen the briefing that the Law Society provided for this debate. I accept its concerns on this, just as I accepted the many concerns that it had over plans in the Scottish Parliament that I debated in my time there. The Scottish Government were quite happy to ignore the evidence-
indicated dissent.
The hon. Gentleman is shaking his head, but the Law Society was absolutely against the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and continues to be. The Scottish Government and the SNP Members north of the border are happy to ignore the views of the Law Society of Scotland when they do not suit their argument. Now SNP Members in this Chamber tell us that we have to agree with absolutely everything that the Law Society says.
On that point, did the Scottish Parliament not vote that that 2012 Act should be repealed?
I will give way in a minute. The SNP is obsessed with centralisation and it is to the detriment of communities such as mine in Moray and swathes of Scotland which have been let down by this centralising SNP Government.
The hon. Gentleman refers a great deal to the Scottish Parliament. In the Scottish Parliament, the Scottish Government are bringing everyone together on the issues pertaining to this Bill and trying to seek consensus. Does he think that his Front-Bench team should follow the same example?
What I would really like to see is the SNP spokesperson on this issue discussing this very matter with the SNP's Brexit Minister in Scotland. What we are seeing north of the border is a Brexit Minister and the Deputy First Minister engaging with the First Secretary of State and the Secretary of State for Scotland. Over the weekend, we heard some positive noises from both of my Governments-at United Kingdom level and at Scotland level-but that does not seem to be replicated by SNP Members here who simply want to show that they are against Brexit at all costs, and they want grievance politics over and above actually delivering for Scotland, which is very unfortunate.
I will not give way, as I wish to make some progress. If the SNP wants to limit the power of the Scottish Government, it may do well to tell its colleagues in Holyrood to start returning power to local communities in Scotland. However, in this instance, SNP Members should be more trusting of themselves. “Appropriateâ€ is, in fact, the appropriate word. Perhaps it is even the necessary or essential word. “Appropriateâ€ gives the devolved Administrations the right latitude to make adjustments that are genuinely effective. As I have said, it is crucial that the statute book continues to operate effectively after exit day, and we cannot risk setting our restrictions so tightly that we compromise that goal. On the other hand, some of the proposed amendments aim to expand the powers of the devolved Administrations, and they risk, ultimately, undermining the vital internal market of the United Kingdom.
The difficulty is that it will be in the interests of Scotland that there is a swift increase in the volume of trade as a consequence of new trade agreements that are negotiated. That will be significantly limited if the powers to deliver those agreements have been diffused throughout the United Kingdom.
To my knowledge, the United Kingdom Government are not proposing to erect tariff barriers, and they do not want to have regulation. Therefore, there would be no need for a hard border in the way in which the hon. Lady describes. If the European Union wishes to collect tariffs or erect regulatory barriers, the European Union will have to erect a hard border, but the UK Government surely cannot be answerable for that.
I struggle to see how the originator of the border-who would erect it-is of any consequence to the people of Northern Ireland. A border is a border and it needs to be avoided at all costs.
It is quite clear that the proponents of Scotland remaining in the UK during the 2014 Scottish independence referendum were right to argue that taking Scotland out of the UK single market would mean the erection of a hard border at Berwick. Given what we have just heard from the hon. Member for South West Wiltshire (Dr Murrison), does my hon. Friend think that the situation would be any different in the context of Northern Ireland?
As earlier contributors have made clear, this issue is the one that finds out the fantasists from the realists. If the Government have the ambition of avoiding a hard border in Northern Ireland, they need to explain exactly how they intend to achieve that.
Is not the hon. Lady putting the cart before the horse? The next phase of the negotiations will determine the future relationship between the EU and the UK. Is not she presuming an outcome that very few people would actually be in favour of?
I am just making it very clear to the Government and all other observers that this matter is not something on which the Labour party is prepared to compromise. That point may need to be made again as we proceed, but it absolutely ought to be made now too.
Perhaps the hon. Lady can help us. Does she agree that it is absolutely agreed by everybody-the EU, Ireland, Northern Ireland and everybody here-that we do not want a hard border, and that the Government have accepted that there will be a hard border unless we get a proper deal, which is why they conceded that point and offered up solutions in their White Paper? Would she further agree that the difficulty is that the solutions that have been offered up are unworkable unless the Prime Minister's excellent idea is put across the whole United Kingdom? It is a great idea, but it should not apply only to Northern Ireland because we are a Union.
Yes, the Irish Government and Her Majesty's Government are co-guarantors, but does the hon. Lady agree that the Irish Government have acted in very bad faith by dismissing the views of a vast number of people in Northern Ireland on the issue of Brexit?
The Minister has told us that he is not going to accept new clause 70. Timing is important, too. Does he realise the signal that will be sent out if Ministers ask their party to vote against it at the end of this debate?
Let me reiterate to the right hon. Gentleman that we are absolutely committed to the Belfast/Good Friday agreement. I will now turn to some of the technical detail on new clause 70, because it is important to reflect that, as I said at the beginning, we support the principles behind it.
If my right hon. Friend will give me a moment, she may be interested in what I have to say next. I do appreciate the enormous effort that the hon. Member for North Down has put into drafting new clause 70, but we could not currently accept it. There are some concerns around it. It goes further than requiring Ministers and devolved Departments to have regard to the key principles. Subsection (4)(a) would require the Secretary of State to refuse consent to reserved provisions in devolved legislation unless the provision is necessary only as a direct consequence of the UK's exit from the EU. This would place a much greater constraint on the provision than can be made for Northern Ireland as compared with the rest of the UK, even in circumstances where there is no impact on the Belfast agreement. As I said earlier, this Bill cannot be used to amend the Belfast agreement. It would create doubt and uncertainty on the use of these powers if we suggested otherwise. The Northern Ireland Act can be amended only in the very limited circumstances that I have already addressed. I therefore urge the hon. Lady to withdraw the motion, but to work with us. We will work with Members across the House to absolutely ensure that the Belfast agreement is respected as we move forward.
I have a very high regard for the Minister, but I have to say that I am profoundly disappointed by what he has said. I am not a legislative draftsman. Technically, there may be difficulties with this new clause, but, for goodness' sake, the Government absolutely have to put the principles of the Good Friday agreement into this Bill. That is where the Government need to stand with all the people of Northern Ireland and say to them that, even if we are leaving Europe, as we are doing-Brexit is going to happen-we are not going to allow that decision to undermine the sterling work and the peace and stability of the Good Friday agreement. I am pleading with the Government to give a commitment that they will look at the technicalities, and change the technicalities, but accept this new clause this afternoon.
Our commitment to the Belfast agreement is absolutely clear. We are committed to it. We are not changing it as a result of this Bill. The Bill would not allow us to do that. We are protecting the Northern Ireland Act in this Bill. We will work with the hon. Lady and with hon. Gentlemen and hon. Ladies in all parts of the House to secure the legacy of the Belfast agreement.
My hon. Friend keeps reiterating, with ever greater passion, the Government's 110% commitment to the Belfast agreement. The reason for not putting it into the Bill is, with great respect, an extremely obscure drafting point, which I have tried to follow but cannot quite, because the provision that he refers to is extremely narrow indeed. It applies to possibilities that may arise after withdrawal from Europe-minor consequences. If there is anything wrong with the drafting, the Government can correct that on Report and they will probably not meet any passionate resistance from anyone in the House. In view of what the Minister said, the Government should show their commitment by accepting the new clause, and all this other footnote stuff can be sorted out at a later stage.
I have great respect for my right hon. and learned Friend. On the point that he makes, the Government have absolutely accepted their commitments to the Belfast agreement. It is already a matter of international law. We are committed to that agreement. It is annexed to the British-Irish treaty, and we will continue to respect it in the way in which we approach this whole issue. We will work across the House, as we always have, constructively to ensure that the approach that we take is absolutely in line with the Belfast agreement, and we have done that throughout this process.
I, too, share the serious disappointment expressed by the hon. Member for North Down (Lady Hermon). I reiterate the comments that have just been made by the Father of the House. It would send the strongest signal if the Government accepted the new clause, coming back to the House to correct any technical deficiencies at a later stage. The Government are going to ask Members to vote against the principle of the Belfast agreement, which is an extraordinary thing to do. No matter what the Minister says, that is a very dangerous situation.
Let me make it clear to the hon. Gentleman that no one who supports the Bill will vote against any principles in the Belfast agreement. It is absolutely clear that the Belfast agreement is protected and is something that we intend absolutely to continue to deliver on. We cannot accept an amendment that, in this case, would create doubt about the protection of the Northern Ireland Act. We need to ensure that through this process we create continuity and certainty. I again urge the hon. Member for North Down not to press the new clause, because our commitment is absolute. We will meet that commitment to the Belfast agreement. If she does press the new clause to a vote, that could create the wrong impression for some people outside the House.
In all honesty, no one in the House who has ever been a Minister or has had any responsibility at all understands what the Minister is talking about. Minister after Minister has accepted amendments with which they agreed, then asked their draftsmen to sort out any technical issues. Instead of doing the sensible thing and doing that, the Minister and Government Whips-if, as I hope, the hon. Member for North Down (Lady Hermon) pushes the new clause to a vote-will ask their MPs to vote against the principles of the Good Friday agreement. That is how it will be seen by people who look at votes in the House.
Let me repeat to the hon. Gentleman what I have made very, very clear: no one in the House would be voting against those principles. The Government absolutely support those principles, which are enshrined in the Northern Ireland Act, which is protected under the Bill.
I urge the Minister to hold his ground. My principal difficulty with new clause 70 is that it is purely declaratory. He has made it as clear as he possibly can that the Government are committed to the Good Friday agreement, as are we all. The Minister and his colleagues have resisted declaratory amendments to the Bill, and they should do so again on this occasion.
I am grateful to my hon. Friend, who chairs the Select Committee on Northern Ireland Affairs. I was pleased to give evidence to his Committee the other day on the importance of these issues. I can assure hon. Members across the House that we absolutely have put the importance of no hard border in Northern Ireland and the importance of our commitments under the Belfast agreement at the heart of our approach from the beginning.
I am grateful to the Minister for giving way once again. I have to say to him ever so gently but firmly that that is a high-risk strategy. The message will be sent from the House that there is no support in the Government for the principles of the Good Friday agreement if that is not taken up- Would the hon. Member for North Antrim (Ian Paisley) give me a moment? It would be enormously helpful-it is the principles of the Good Friday agreement: that is what new clause 70 embodies. It does not expand on them-it reflects the principles of the agreement-so will the Minister, instead of putting that high-risk strategy to the House, give a clear commitment that he will take away my new clause and work on it, with a view positively to reflect the tone and spirit in which it was drafted in the first place?
I absolutely give the commitment that we will take away the hon. Lady's new clause and will ensure throughout the whole of the process that we protect the principles of the Good Friday/Belfast agreement. That is something that we are absolutely committed to doing and I can tell the hon. Lady that nobody in this House will be voting against any principles in the Belfast agreement. It is crucial that we make that point clear.
I have great sympathy with the approach of the hon. Member for North Down (Lady Hermon) in her anxiety about seeing the Good Friday agreement respected. That said, it is right that it is an international agreement and I have some difficulty seeing how that can easily be incorporated in a statute relating to another matter. It is either declaratory or it has some effect-one or the other. I simply say to my hon. Friend the Minister that this is an area where the Government may seek and need to provide reassurance, but whether the hon. Lady is right that it needs to be specific on the face of the legislation is, I think, more complex, because it raises as many problems as it may provide answers.
I am grateful to my right hon. and learned Friend for that point. I will now move on to other areas of the Bill, because I recognise that there is a huge interest in the 60 or so amendments on which we need to touch.
Will the Minister give way?
I will, briefly.
I am grateful to the Minister, who is being extremely generous with his time. We do not for a minute doubt his commitment to the Good Friday/Belfast agreement. However, we on the Opposition Benches take incredibly seriously our bipartisan approach on Northern Ireland, and in that context I put it to him that he must listen to the statement from the hon. Member for North Down (Lady Hermon), who says that in Northern Ireland this will be perceived as a backward step in support for the Good Friday/Belfast agreement by the Conservative Government. That is why he must think again.
I am grateful to the hon. Gentleman for his intervention, and for his comment earlier. I agree that we should continue to work on this issue in a bipartisan way, and not just in a bipartisan way but with all parties in Northern Ireland, and with the hon. Member for North Down, in taking this issue forward and providing all assurances that the legal protections in international law and the Northern Ireland Act, as well as all our commitments under the Belfast agreement, are met.
I will give way to the right hon. Gentleman, but this is the last one on this issue.
May I just say to the Minister that I have not had a single email, letter or phone call, or any contact, from my 100,000 constituents in Northern Ireland asking me to vote for this new clause? The idea that people in Northern Ireland are sitting back with bated breath waiting for the new clause of the hon. Member for North Down (Lady Hermon) to be passed so that the Good Friday/Belfast agreement can be secured is unreal.
I am slightly concerned that the Minister will sit down before he has had a chance to make any comment on amendment 338, in my name and those of my right hon. and hon. Friends, which would prevent Ministers from legislating in any way incompatible with the Good Friday agreement. I am sorry to refer him back to that, but I am concerned that he has not yet said anything about this amendment.
I apologise to the hon. Lady. I think I mentioned that amendment in the run-up to addressing the detail of new clause 70 in the name of the hon. Member for North Down, but let me say that Ministers will not and cannot legislate incompatibly with the Good Friday agreement. We are bound by that agreement, and I have been very clear that this Government remain absolutely committed to the Good Friday agreement and have already put our obligations under it at the heart of our commitments. On amendment 160 in the name of the hon. Member for North East Fife, I want to comment on the fact that such powers have previously been used, because it is important to recognise that this issue has already been addressed. For instance, the Treaty of Lisbon (Changes in Terminology) Order 2011, which was made under section 2(2) of the European Communities Act, amended the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 to give effect to new terminology relating to the European Union. Leaving the EU will require changes of a similar technical nature across the settlements, and that is what the powers enable.
I thank the Minister for going into such detail. Earlier today, the Secretary of State for Scotland said he would be introducing changes. To which amendments might those changes refer and when might they take place?
I cannot say at this stage, but let me repeat that in both this debate and the debate on clause 11, we have been clear that we are listening to the Committee and engaging with it, and we will give the matters raised careful consideration. I think the comments made by the Secretary of State for Scotland reflect that approach. It is important that we move forward together with all the devolved Administrations and ensure that the United Kingdom and each part of it can deal properly with their statute book.
I know the Minister wants to make progress, but I have grave fears. Is there not some way we can sort out the business of new clause 70? I am not saying that the hon. Member for North Down (Lady Hermon) should withdraw it, but it seems to me that there is a better way. I do not know whether the hon. Lady has met the Minister and the Solicitor General, but we should put a meeting together and get it sorted out-get the assurances. I trust the Minister and what he says at the Dispatch Box, but there is going to be a big problem with misinterpreting any vote against the new clause. It needs to be sorted, and I suggest that the hon. Lady and the Minister meet to see whether this can be sorted out.
The cross-party amendments would not have been tabled, or indeed recommended by the Welsh and Scottish Governments, if everything was hunky-dory and fine in the negotiations between the UK Government and the devolved Administrations. We got some movement from the Secretary of State for Scotland this morning. Will the Under-Secretary of State also move on amendment 158, which stands in my name, and perhaps on some of the other concerns that the Welsh and Scottish Governments have set out so clearly?
I absolutely respect the effort of, and have referred a number of times to the evidence collected by, Committees; some of these amendments are tabled by Committees, and we respect that. We want to engage with them, which is why I am trying to give a comprehensive response on all these matters. I hope that the hon. Gentleman will be pleased with some of the things I have to say. We absolutely want to engage with the Committees, because I recognise that we are talking about important institutions that we need to engage with successfully. With that in mind, I have been to give evidence to Committees of the Assembly and the Scottish Parliament, so I say to the hon. Gentleman: keep listening.
I am grateful to the Minister for his detailed responses. He talks about consulting. In an internal market, about which the Minister has spoken, there are different states that have an equal say. What will the arbitration mechanism be and will the Government go further than merely consulting the devolved Administrations?
As we discussed in great detail on day 4, direct Government-to-Government contact is happening on those issues. We have the JMC process-it will meet next week-and I hope that we can all agree ways to move forward that allow this to be delivered for each part of the UK. The consultation process will ensure that we take the approach that works best for the UK as a whole and takes into account the needs of each part of the UK. It will also ensure that existing common approaches are not undermined while we work through with the devolved Administrations where they will and will not apply.
The Minister failed to answer the question that my hon. Friend the Member for North East Fife (Stephen Gethins) asked. What will the arbitration mechanism be for deciding that?
I will give way to the hon. Lady briefly, on that point.
May I take the Minister back to new clause 70? Given the signals and impressions given by the House over many years in relation to British-Irish relations, he will appreciate the importance of what is happening today. Can he tell us when the Government decided not to accept the new clause? I understand that it was tabled several weeks ago. Did the Government make that decision before the weekend, or in the last few days?
The Government have made their position absolutely clear, but let me again reiterate our firm commitment to the principles of the Belfast agreement, and to ensuring that we respect and meet those principles throughout this process. I have offered to meet the hon. Member for North Down to continue this conversation and ensure that we do everything we can to meet those commitments throughout the process. I think it is important that we are listening and responding to these debates on behalf of the whole United Kingdom. I conclude by extending my gratitude to Members for their thoughtful consideration of all these provisions. To allow us the time to consider the comments made and their important practical implications, including for our negotiations, I urge Members not to press their amendments today, but I reiterate the offer to continue to work with the hon. Lady and all others across this House, to ensure that we deliver on the principles and our commitments under the Belfast agreement.
I will keep my comments as brief as possible. I congratulate the Members who have managed to bring various new clauses before the Committee of the whole House; they add to the debate and to the colour and tapestry of this place. In particular, I congratulate my colleague, indeed my cousin, the hon. Member for North Down (Lady Hermon) on introducing the lead new clause. Even though, as she knows, I do not agree with her on the principles, it has added to the debate.
I will give way to the hon. Lady later, but I first want to explain some of my detailed points, given the warning we have just had from Mr Hoyle. On new clause 70, the hon. Member for North East Fife (Stephen Gethins) said that the DUP does not speak for all of Northern Ireland. He is, of course, absolutely right, and we have never claimed to do so. However, there are seven Members who could be in this place tonight but who do not bother coming, and they could make many of the points that they claim they are so passionate about and support the provisions they wish to support. There is no reason in principle why they cannot be here; the reasons are political cowardice and political convenience only. But others cannot chastise my party and the people we represent in this place, because we do come here, we do make our voices heard, and we do raise the issues that we care passionately about and that are put to us. As the Member who received more votes in Northern Ireland than any other Northern Ireland Member, I am more than happy to speak for those people and ensure my constituents' voice is heard on these issues. We will not take a vow of silence-which would be convenient to many in this House-out of some form of false shame.
I rise to be helpful to the hon. Gentleman. When I made my comments, what I meant was that an issue as big as Brexit should require the Government to take on board as many views as possible. The hon. Gentleman is right to make the point he made: the SNP does not represent everybody in Scotland and the DUP does not represent everybody in Northern Ireland, and that is precisely why the Government should be reaching out.
I only go so far with that point, because it is wrong in this sense: every issue that comes before this House-whether a minor constituency petition or a major European withdrawal Bill-is important to the people we speak for, and we must give it the full weight and dignity that it therefore deserves. I was delighted that tonight the Minister from the Dispatch Box nailed the fallacy that new clause 70 would bring about-the fallacy that that new clause is the only way that Her Majesty's Government can show their commitment to the Good Friday agreement. That is common unnecessary grievance; this matter does not need to be brought before the Committee, as the Minister explained well. In fact, I would venture to suggest that the lives of soldiers and police officers, and the money from taxpayers from across the whole of the United Kingdom, as well as an international treaty, have in many ways demonstrated the Government's commitment to the Good Friday agreement-the Belfast agreement-and the follow-on agreements. It is wrong to support this grievance culture that we are so good at in Northern Ireland. The Government are clear that they do support the Good Friday agreement, and it would be wrong to add it to this Bill. It diminishes an international treaty to say it has to be reinforced again in a Bill to which it is not relevant. The Belfast agreement makes scant comment and reference in all of its 35 pages to the EU and its activities. It makes several references to the European convention on human rights, which is outwith the EU, and it is right to do so, and it makes one reference to the process of d'Hondt-a European mathematical mechanism for electing people in a particular way and sharing out political office-in its 35 pages, but there is no reference whatsoever to key elements of the EU.
The hon. Gentleman is making a logical and thoughtful case. Does he not agree that all the substantive protections that were intended after 1998 to protect the Belfast agreement in Northern Ireland's domestic law were introduced either in the Northern Ireland Act, or in specific statutes that still apply or will apply in retained law as a consequence of this legislation, and that all the substantive protections will therefore still exist? The declaratory or mandatory provision that would be introduced by new clause 70 would simply cut across those protections and introduce significant legal uncertainty.
The fact of the matter is that the utter confusion on the Opposition Front Bench on an issue as important as Brexit is only amplified when they give us this hand-wringing sanctity about supporting the Good Friday agreement but then give no evidence as to why provisions such as those proposed should be in the Bill.
We are under some time pressure, so I would rather continue. The agreement is also important in what it says about identity, and I wish to stress this point. It gets to the heart of the old problem that dogged Northern Ireland politics, which was the view that if one community gained, the other had necessarily lost. The tyranny of identity politics can be that it forces people to choose between multiple and overlapping identities-are they one thing or the other? When it comes to identity, the genius of the Good Friday agreement is that it does not force people to choose. Instead, it talks of“the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or bothâ€. Let us not forget the “or both", as it is very important. It gives everyone in Northern Ireland an equal status and a legitimate sense of belonging.
My right hon. Friend might well reflect on the fact that section 75 of the Northern Ireland Act 1998 creates quite a complex but rather delicate mechanism for the enforcement of many of the Belfast agreement principles. It relies not on a court, but on the Equality Commission, and the Secretary of State is at the apex, the decision maker, and decides whether or not a public authority is obeying the principles of equality in the Belfast agreement. If this new clause is introduced into Northern Ireland's law, it will unquestionably create a situation of complex uncertainty as to how it sits with the Northern Ireland Act.
While I of course support the amendments tabled by my hon. Friend the Member for North East Fife (Stephen Gethins), I will address my speech to the hon. Member for North Down (Lady Hermon), who is no longer in her place. The issues of Ireland and the Good Friday agreement and its relevance to the people who live in the border areas are of genuine personal interest to me and to many of my constituents. It would not have been that long ago that my late grandfather would have walked from Convoy into Strabane. Back then there was no border, and none of us would ever want to go back to the border that came in during those intervening years.
I am aware of time restrictions, Mr Hoyle, so I will not take any interventions. I shall speak to amendments 174 and 169. It will come as no surprise to hon. Members that I do not support amendment 174 and other amendments tabled by Scottish National party Members. The reason for my opposition, and my party's opposition, to those amendments is that they expand powers to amend directly applicable EU law, undermining the proposed UK frameworks that the devolved Administrations indicated that they favoured. I may be new to the Commons, but devolution is even younger than I am. Although it is still evolving, the Bill and subsequent Bills will provide us with a real opportunity to progress the discussion and the devolution settlement. I want to make one or two points very clear, as they have been raised by Opposition Members. No Government Member is threatening the permanence of any devolved institution. In fact, any change would have to come to the Commons, where Members represent Scottish, Welsh, English and Irish constituencies. We will make sure that any change goes through the House and is subject to scrutiny. Finally, devolved consent and operation are not necessarily better. I suggest that Members look at the SNP Administration in Edinburgh, and the performance on education and health-devolution does not always produce better results. Devolved legislatures are not models of efficiency. The Scottish Parliament in Edinburgh was starved of legislation for over six months last year, and it spent more time debating Brexit and international affairs, which are reserved, than education, justice and health combined, which are explicitly devolved.
I am sorry, I am completely out of time. It is completely true; those are facts. One thing that has been made clear-
I said that I would not take interventions; I am really sorry, as I usually would. What has been made clear by Members across the House-
I am sorry, I am not going to give way to the hon. Lady, who arrived late. The hon. Member for North Down (Lady Hermon) spoke powerfully about the sacrifice and dedication of many people to the United Kingdom. Opposition Members did not only hear her words but understood them. I hope that most Members, with some exceptions, want us to be committed to the United Kingdom and want amendments to the Bill to strengthen it, both in devolved and reserved matters, so we had better serve our constituents and not political dogma.
I am an MP from Northern Ireland, but not a Northern Ireland MP, which makes speaking in debates such as this one rather peculiar, because everyone from Northern Ireland has a background or perceived affiliation. I find, when I say something that nationalists agree with, that they say, “Well, he hasn't forgotten where he has come from.â€ When I say something with which they disagree, they say, “He should be ashamed of himself, given where he has come from.â€ Similarly with Unionists, when I say something with which they agree, they say, “Fair play to him, given where he is from.â€ When I say something with which they disagree, they say, “Well, what would you expect?â€ I have a knack of annoying everyone, which I hope to continue in the two minutes available to me. I want to make a couple of quick substantive points, then say something about the Good Friday agreement. First, the only people seeking to change the border, or who have proposed a fundamental change to the border, are those who propose that we leave the single market and the customs union. It was the UK Government who fundamentally altered the nature of the border when they suggested that, not the Irish Government. The principle of consent is firmly enshrined: Northern Ireland will remain part of the United Kingdom until the majority of the people there decide otherwise. Notwithstanding that, there is a unique position, because people born in Northern Ireland have a right to Irish citizenship by virtue of their birth there. My constituents in St Helens do not have a right to be Irish because they are born in St Helens, nor do people in Manchester, Birmingham, Glasgow or Cardiff.
I thank my hon. Friend for giving way at this late stage. Like him, I am deeply disappointed by the Government's inadequate response to arguments made today to protect the Good Friday agreement. I am also disappointed that they appear to be prepared to risk a vote that could be perceived as challenging bipartisan support for the agreement, but we are not prepared to do that, so we will not seek to divide the Committee. I thought my hon. Friend should know that before he continues.
I thank my hon. Friend for that; the position is very strong and very clear. The legacy of the peace process is not a Labour legacy; it is a legacy shared between us all. I hope that the Conservative party will reflect on that in these debates, and I am disappointed that the Government have not accepted the new clause today. It is disingenuous to say that the European Union is not mentioned in the Good Friday agreement. Its writ runs through the Good Friday agreement, which was predicated on the basis that we would both remain members of the European Union, and around strand 2, which is north-south co-operation, and strand 3, on east-west co-operation, it is mentioned specifically in terms of areas we can discuss, and there are shared competences. I want also to remind the Committee that although we talk a lot about the referendum to leave the European Union and its result, the Good Friday agreement was passed by referendums on both parts of the island of Ireland by a majority of people exercising their democratic right. We need to respect that referendum as well as the referendum on the European Union. The debate focuses primarily and largely on trade, tariff and regulatory alignment. The Good Friday agreement and the peace process are much more than that. I said in this House in my maiden speech that there was no contradiction in being British and Irish, or to having feelings of loyalty, affinity and affection for both countries. That is being tested by this process, but I stand by it. I plead with the Government: through this Brexit process, do not make people choose.
This has been a wonderful debate, and I greatly appreciate the contributions from all sides, even when they disagreed with new clause 70 and even when they were made by Members of the DUP who disagreed with new clause 70. Despite my disappointment, which is real, and that of other Members, the greater objective is to maintain the Good Friday agreement and its respect and integrity, and to ensure that we do nothing in this House that gives succour to dissident republicans or increases the risk of terrorism. I will therefore not press the new clause to a vote. I will, however, accept the very nice invitation to tea with the Minister, but I do not just want tea and buns. I want a commitment from him now-I want him to intervene on me-that the Good Friday agreement will be preserved in some other form, if not today.
I give the hon. Lady that commitment. The Good Friday agreement is an absolute commitment that we stand by and it will be preserved. I will work with the hon. Lady, as I have been invited to do, to ensure that through the whole of the process we deliver on the principles.
I will take that as a commitment that at tea we will agree that the Good Friday agreement will be written into the next Bill-perhaps the withdrawal Bill. The Minister just has to nod.
As I said to the hon. Lady in the Northern Ireland Affairs Committee, we are in the process of negotiating the withdrawal agreement and therefore we cannot pre-empt the detail of the Bill. Clearly, we want to enshrine the principles in the withdrawal agreement and that Bill will legislate for that. There is a logic to what she says and I am happy to follow up and discuss it further.
With that, I beg to ask leave to withdraw the new clause.
I beg to move, That the clause be read a Second time.
New clause 17 relates to clause 12 -
It seems peculiar that, when we are supposed to be taking back control, the House has not been given any kind of figure that we can scrutinise. The only figure we have is £350 million a week for the NHS, which we know is a complete lie.
That was the surprise, and not just for us. Perhaps we were a bit cynical and did not expect the £350 million a week for the NHS on the side of the red bus to come to fruition, but I think that the British public were genuinely surprised when it turned out that, rather than Brexit's giving us that fantastic dividend, it was actually going to cost us a considerable amount.
It is not surprising that the public were surprised. We may have accepted that much of what was promised during the referendum might fall apart subsequently, but even after the event the Government were telling us a very different tale. My hon. Friend will remember being with me on the International Trade Committee when the Secretary of State came along and said, “I don't expect us to pay anything to leave.â€ My constituents heard that said not just during the referendum, when they might expect to hear things that were somewhat fanciful, but many months later. The Government were saying, “We won't be paying anything to leave.â€ What we are hearing now is very different.
It is worth listing the promises that were made to the British public in the run-up to the referendum, not just by Vote Leave but by individual Members of Parliament, including the Environment Secretary and the Foreign Secretary. On 22 June 2016 they wrote, on behalf of Vote Leave:“We will take back control of our moneyâ€. The International Trade Secretary said:“Instead of handing over £350m a week to Brussels we should be spending that money on local prioritiesâ€, such as the NHS. I am delighted to see that the right hon. Member for Wokingham (John Redwood) is present. He is very assiduous when it comes to these issues: I will grant him that. Before the referendum, he asked “How should we spend this Brexit bonus?â€ It was suggested that riches would be available for our vital public services. Those were the promises that were made to the British public.
Is it not all the more extraordinary that we are told not only that we will have to pay tens of billions as a divorce bill, but that the Chancellor has already put aside £3 billion-on top of the £750 million that has already been spent-just to cope with the costs of preparing for a potential no-deal Brexit?
We saw that £3.7 billion of supposed Brexit preparations in the Treasury Red Book at the time of the Budget, but I suspect that it is quite a modest sum. I know that there are former Chancellors of the Exchequer and others who have more experience than I do in this regard, but I think that those sums may have been set aside for a softer Brexit. If we ended up with a cliff edge with people saying, “We don't need even a free trade agreement; we can cope on our own in a WTO scenarioâ€, those Brexit preparation costs could be significantly higher.
The hon. Gentleman is making an extremely important point. Lots of people who had become really fed up and disaffected with politics and politicians took out their frustrations in the referendum. As the hon. Gentleman has said, many of them genuinely believed that if we left the European Union, there would be more money to be spent on our NHS. He is right: not only will we not have that money, but our economy could begin to retreat-and if we do not get a good deal but fall back on WTO rules, it undoubtedly will-and we will have to put aside, by way of example, £3 billion for Brexit, money that could have gone to the NHS. So my question to the hon. Gentleman is this-
May I just ask this question? Does the hon. Gentleman not agree that there are many forms in which that disaffection may be manifested as we see our NHS actually-
The right hon. Lady was making an incredibly important point, Mr Hanson. It is not just a question of the divorce bill-the financial settlement-and it is not just a question of the billions to be set aside for Brexit preparations. The bigger issue that the right hon. Lady was raising is what will happen in a dynamic economy if our trade opportunities shrink, and if obstacles and tariffs are put in the way. This is not just our assessment, or opinion. The Chancellor himself published a table in his Red Book which showed what he and the Office for Budget Responsibility expected to happen to tax receipts over the next few years. He anticipates that by 2021 tax receipts will have fallen by not just £10 billion or £15 billion, but by £20 billion. That is £20 billion less revenue for the Exchequer to spend on the vital public services we want. This is a triple whammy, therefore, in terms of the costs of Brexit, and it is a surprise to many members of the public, who were told precisely the opposite.
May I suggest that in fact it is a quadruple whammy, because the hon. Gentleman has not yet referred to the fact that the mythical impact assessments that the Government have or have not conducted-we are not quite sure-probably contain some very large figures about the damage Brexit is going to cause to the 58 sectors on which those reports were apparently conducted?
It almost beggars belief that we are hearing not only that the Cabinet has not yet discussed the sweeping of the single market and customs union from the table, and has not yet had the chance-it is very busy-to discuss the future relationship between the UK and the EU, but that it has not even bothered to commission impact assessments. If ever there was an example of a no-questions-asked Brexit-we just career headlong towards the cliff edge, blindfold, and we do not want to ask questions-this is it. We want no information, say the Government. That is the situation we are in.
The hon. Gentleman is very well informed and of course, as we know, very bright, so perhaps he can inform the Committee of the cumulative net cost of the EU-our net payments over the last 42 years.
People have speculated that the net cost in terms of payments was about £10 billion a year, although some have said it was less, depending on how we look at it, but there is a cost to be paid for being a member of any club. We have to weigh against those fees and charges the benefits we get from being a member. If we are a member of a club and are gaining benefits from it, we have to ask whether the advantages outweigh the disadvantages and the benefits outweigh the costs. It is clear in terms of the wider economic expectations, and the Chancellor's own assessments of what is going to happen to tax revenues in the future, that we are potentially going to be poorer as a result of some of the Brexit scenarios we are seeing.
Does my hon. Friend agree that one of the net benefits has been peace and prosperity across Europe?
Yes, it is true that the benefits are not simply financial. There are social benefits as well as economic benefits, and environmental benefits, and general welfare benefits that we have had in terms of the stability of the continent for such a prolonged period of time. Those benefits should not just be idly swept away; they should certainly be assessed, and the Cabinet should certainly be discussing them.
Not only is the hon. Gentleman very wise, as my hon. Friend the Member for Gainsborough (Sir Edward Leigh) pointed out, but he is also very fair. In the interests of fairness, and in the context of the point about the £350 million a week, does he accept that greatly exaggerated claims were made by right hon. Members, some of whom remain in this House and some of whom are no longer in this House, about what would happen on day one after we voted to leave the EU? So far as I am aware, there have been no plagues of frogs and locusts, and the sky has not fallen in.
And we have not left the EU left. The hon. Gentleman makes the point that in any election or referendum campaign there are of course claims and counter-claims, but the success of the leave campaign has caused the situation we are now in, compounded by the choices made subsequently-the interpretations that were not on the ballot paper about sweeping away the single market and the customs union. These have led not to my assessment of what will happen to tax revenues, but to the hon. Gentleman's own Chancellor of the Exchequer's assessment. We can talk about our expectations during the campaign, but the hon. Gentleman must acknowledge that the public feel that a result was reached during the course of that referendum and they will look to those who advocated leave and think of the promises made at the time, and expect them to be fulfilled.
We rightly debate all the figures, including the infamous £350 million on the side of the bus, but do we not also need to look at the real impact on the ground? The fact is that we are now having to recruit new customs and border officials to deal with the potential consequences of Brexit instead of spending Home Office budgets on new police officers.
Yes, there is a sense that the nation should be talking about how to tackle the massive challenges that we face-questions of productivity, of opportunities for young people and of the kind of healthcare improvements we can expect in the 21stcentury-but they have now been put on the back burner while we try to negotiate an inferior free trade arrangement to the one that we currently have. This is a kind of salvage operation.
I am a new Member here, and most of the people around the House do not have a clue who I am, but as a new Member, I think I might bring a slightly fresher approach to the debate. Nobody in their right mind would sign a blank cheque for this amount of money, but if I tried to explain to my constituents why I am not going to be consulted about the final sum, I could not do it. It's nuts!
At the very least, we should know what we are being asked to pay. We know that the Foreign Secretary told the European Union to “go whistleâ€, and perhaps that is still the Government's official policy. We also know that only in September the Brexit Secretary was saying that a figure of £50 billion was “nonsenseâ€. Since then, of course, we have seen completely different reports. Parliament and the people deserve to know the sum involved. The idea of a blank cheque is completely unacceptable.
I am worried that my hon. Friend is going to move on from the important point that he has just raised about the impact assessments. There is a serious question about the competence of the Government if they have gone ahead with this without producing those assessments. There is a more important question, however. We as Members of Parliament were told that there were 58 documents that went into excruciating detail, but it now appears that that was not true. Amid all the talk about what happened outside this place, we must not forget the central point that the Secretary of State stood at the Dispatch Box and told us that those documents existed and that the Prime Minister had looked at a summary of them. He is now saying that those documents do not exist, so what he said was not true.
My hon. Friend's anger about this is correct. For all the bonhomie and swagger of the Secretary of State for Exiting the European Union, this is unacceptable. He always has a cheeky little smile and a glint in his eye, but we should not let him off the hook. With all that bluster, he was saying, “Oh, don't worry, there are oodles of detailed impact assessments but you must realise that they are commercially sensitive. We can't possibly share them, but don't worry, detailed impact assessments have been produced.â€ It now turns out that his bluff has been called, and when the curtain was pulled back we saw that those things did not exist, and he is now cycling away. Nobody expected this to be quite so threadbare.
Will the hon. Gentleman give way?
I would like to make another point before I give way again. This brings in the wider theme about sidelining Parliament and creating a sense that we should not have proper scrutiny of these issues. The new clause is about scrutiny, as is the debate going on in the Brexit Select Committee. It is also about the fact that sovereignty lies not in the hands of Ministers but in the hands of Parliament as the representatives of the people, and we need to do our job. The massive land grab of legislation, under the Henry VIII clauses in the Bill, is not acceptable. The cloak and dagger pretence about the impact assessments is not acceptable. Also, the idea that the divorce bill will be somehow covered over in some grubby hidden backroom negotiations, itemising only the textual liabilities rather than showing us the pounds, shillings and pence figures, is not acceptable.
The new clause goes to the heart of the argument made for the UK leaving the European Union: this House would take back control. It was done in the name of parliamentary sovereignty. Does my hon. Friend not find it curious, therefore, that the Members who argued in the name of parliamentary sovereignty that we should leave-I see the right hon. Member for Wokingham (John Redwood) in his place, and the hon. Member for Gainsborough (Sir Edward Leigh) and others-do not support his new clause? I find it remarkable. That this House should approve any divorce bill would be the ultimate reassertion of parliamentary sovereignty.
I see the right hon. Member for Wokingham (John Redwood) nodding his head, so he agrees. He is an honourable gentleman, because he does believe in parliamentary sovereignty. Many hon. Members agree that the new clause is not about whether we believe in the single market or the customs union; it simply states that when the withdrawal agreement comes to fruition there needs to be a specific vote on the money, because it will come from the taxes collected by the Exchequer-by the Government-and authorised by Parliament. There needs to be authority. I want to see hon. Members who advocated the whole process, on both sides, having to put their mouth where their money is and go through the Lobbies to state an opinion about the amount of money involved.
Has the hon. Gentleman considered whether his new clause would achieve that, because it is phrased so that a draft of the instrument authorising a payment must be approved, but that would not require a specific sum? It could simply be a framework regulation allowing for such a payment to be made. Surely his new clause is not to the point.
The hon. and learned Gentleman, who considers these matters in great detail, will understand that this matter relates to clause 12, which details financial provisions. Clearly it would be impossible for the Government to bring forward such a motion that did not have the clarity that the House expects. In my generosity, I drafted the new clause so as to make it as broad and flexible as possible. Any information would be better than no information. I know that he is urging me to be firmer with the Government on the issue-a manuscript amendment is always possible, so I look forward to that. Let us give the Government a chance to accept the new clause, because it is perfectly reasonable.
My hon. Friend is exposing whether the Government are hiding facts from the House over the cost of the divorce bill. Is he concerned, as I am, that the lack of scrutiny means we do not know what we are getting for the money? For instance, we have heard from Government Members that we are leaving a club. Well, we have to settle our tab before leaving a club. They are also confusing that with the future trade deal. We are not seeing what the cost of the trade deal will be. There seem to be two figures here: the cost of leaving and the cost of a trade deal-but we are not getting that detail from the Government.
No, and of course we are talking about the divorce bill now, even though we have had no sight of it, because the Prime Minister is naturally anxious to move on from phase 1 to phase 2 of the talks. I almost feel sorry for her, because she is being pulled from pillar to post, with the hard Brexiteers wanting one thing and the DUP always yanking her chain in another way. The EU is of course a stickler when it comes to sufficient progress, but sufficient progress is what she wants to achieve, so she will give them a nod and say, “We will give you a divorce bill settlement, but please don't publish how much it is, in case Parliament and the public find out.â€ If it is in the order of £67 billion, which is in the back of the OBR's red book-I doubt it will be that high-that equates to £1,000 for every man, woman and child in this country. Members should just think about that when they are next in their constituencies: £1,000 for every single person they see will be part of that divorce bill.
Does the hon. Gentleman believe, as I do, that the Government have managed to convince themselves that the EU is going to “go whistleâ€ and that leaving will not cost us a penny because they get their information from too limited a number of sources? I do not know whether he is familiar with the Legatum Institute-I know that the Minister on the Front Bench is a fan-but the Government seem to give it undue access, and possibly influence, and it has a specific agenda.
I do not want to get too side-tracked into my opinions on the advice given by the Legatum Institute. Let alone the Government, I suspect the Legatum Institute has not been doing many impact assessments. The Legatum Institute might be a good cheerleader for the cause-there are many good cheerleaders for that particular cause-but that emotional response is not necessarily evidence-based. A minute ago, my hon. Friend the Member for Eltham (Clive Efford) raised the question of what we will get for this divorce bill settlement. That raises the next natural question. Many commentators are assuming that, by moving on to phase 2, we part with this £50 billion or £60 billion and, at last, we are finally able to talk about trade. Actually, under article 50, we will not be entering trade deal territory; we will be entering territory that is about a framework for the future relationship with the European Union.
Will the hon. Gentleman give way?
I will give way in a minute. It is important the Committee realises that phase 2 is not trade talks. The £50 billion does not secure a trade deal. Article 50 refers to:“an agreement... setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.â€Phase 2 of these article 50 talks will look at only the framework, not the substance of future relationships. The details of that full trade deal will begin only when the UK becomes a third country, which is important because we are getting to the notion that this is the only financial commitment for which we are on the hook. Phase 2 is actually a bit of an interregnum period. The actual detail of the trade relationship will come after we have left, after exit day. The whole Committee needs to appreciate that.
Does the hon. Gentleman agree that the Bill is paving the way for a hard Brexit? The Bill is dealing with everything up to exit day, and thereafter, if we get a deal, it will be sorted out after we have left the European Union.
That is why so many of the amendments tabled by the right hon. Lady and by other hon. Members are crucial to ensuring that Parliament keeps its foot in the door in this process so that we do not just give things away, money for nothing, by giving Ministers total power on exit day to negotiate these arrangements and treat Parliament as a rubber stamp after the fact. We have a duty to make sure we get whatever best deal is possible. Phase 2 could simply be heads of agreement. It could be a couple of sides of A4 simply saying that, after exit, we intend maybe to talk about the details of a particular trade deal. This £50 billion or £60 billion is not purchasing a trade deal.
Is my hon. Friend arguing that this country will spend up to £67 billion, over which Parliament will have no say, to leave a club and to take us on to a stage to create a framework to re-enter a relationship with that club?
More or less, and that that relationship may never match, even partially, the arrangements that we have at present. If my hon. Friend and other hon. Members will bear with me, we then have to imagine that we have just gone past exit day. We might have a heads of terms framework. We then, of course, enter a two-year transition period, if we are lucky. How much will we have to pay during that transition phase? The notion that our divorce bill is the end of the money is, of course, not right. I anticipate that, during the transition, if we are on the exact same terms as now, which is the impression we have from the Government, we will obviously have to continue paying into the club for those years of transition. If we want to get any deal at all, especially one that is better than Canada's comprehensive economic and trade agreement, we will also have to pay into the club for future years. If we are lucky enough to get the inferior arrangement that is the Norway deal, which is certainly better than absolutely nothing but is not as good as the single market and customs union membership we have right now, we will have to pay to be members of the club. The idea that the full benefits of Brexit are to come is a fallacy. The Norwegian people pay £140 per head each year for the Norway arrangement. We pay about £210 to £220 per head per year, so roughly two thirds of that cost will continue, for the inferior relationship. These are costs to our taxpayer that they need to know about, so that they can make assessments of the these things.
Is my hon. Friend aware yet of the evidence the Chancellor gave to the Treasury Committee this afternoon, when he, in effect, confirmed that there has been no Cabinet decision or agreement about the desired end position of the British Government? So we are leaving the single market and the customs union-that is not a decision taken by the Cabinet-but if we ask any Minister what the form will be to deliver on the Florence speech, they will not be able to give us a Government position. What an absurdity this is.
It is not just an absurdity; it is massively irresponsible for the Government to run headlong in a direction without knowing where they are going and without doing any assessments of potential costs. It is important that the British public see this, because they need to understand that this is not a fait accompli. We do not just have to throw up our hands and say, “Nothing can be done about this. It is all just going to happen.â€ The British people do have power. They do have a chance to change course. I believe we will see the clock ticking away and there will come a moment when we have to make a judgment and say, “Are we just going to continue to this timeframe?â€ Article 50 can of course be revoked or put on pause, and we need to consider that as an option. The British people do have the right to think again if, on reflection, they see that this process is too costly and potentially too damaging.
My hon. Friend is making a good case. There is a further cost that he is not taking into account, which is the cost to the public finances. We know that the Red Book takes no account of the £40 billion or £50 billion in the divorce bill, which means that the Government's forecast-or the OBR's forecast-for the public finances will be shot to pieces. That means interest rates will go up faster than anticipated and the cost of Government borrowing will go up. This is a major economic event and we need an assessment of that as well from the Government. Does my hon. Friend agree with me?
Yes. All hon. Members, not just the Government-there are such hon. Members even on the Labour Benches-will want to commit public resources to all sorts of things, and they need to recognise that if the cost is £60 billion, that is not something to be sniffed at. In a couple of years' time the deficit is projected to be about £30 billion a year, so we are talking about the equivalent of two years of deficit to be added, presumably, to the national debt at that point in time. That is all notwithstanding what happens to our wider economic circumstances. These things should not just be dismissed. We should be putting the House of Commons at the centre of this process and not treating it as a peripheral part of the Brexit arrangements. That is why this new clause is so important. Brexit is a costly exercise and Parliament needs to have the chance to properly reflect on it. A potential divorce bill of £1,000 for every man, woman and child in this country certainly should not just be brushed aside. When we ask ourselves what we are getting for this arrangement, we see that we are getting the chance to rip up the finest free trade agreement-a frictionless, tariff-free agreement-of anywhere in the world, for the chance to have something inferior. The current path we are on is not about taking back control; this is about losing control. The idea that Parliament should simply step to one side and agree to have control taken away from it is not acceptable to me and to very many hon. Members. This new clause would at least drag Brexit back into the sunlight and let the public hold those responsible to account.
With his customary eloquence, the hon. Member for Nottingham East (Mr Leslie) has given a splendid speech about many things. I wish to divert slightly from his path by taking his new clause seriously as a legislative object, rather than engaging in the interesting questions he raised about the utility or otherwise of the whole of Brexit. The Committee is called upon to decide whether proposed amendments to the legislation are meritorious in terms of achieving the objects of the Bill, and that is what we have done in Committee on many other occasions as we have gone through the Bill. It is obviously right that Parliament should control public expenditure. The withdrawal agreement will be an element of public expenditure, so one might think that new clause 17 was meritorious. However, it is clear that the payments that the new clause describes will, if they arise at all, be part of an agreement. The Government, rightly, have already said that Parliament will have a vote on the agreement. We cannot vote on an agreement without voting on the financing of an agreement, because the agreement will stipulate the financing. Therefore, new clause 17 is entirely otiose and there is no reason for the House to vote in favour of it. The House should reserve its voting for a later moment when the Government introduce the amendment to allow us to control the agreement, which I shall certainly support.
I think the Government have gone further. They have said that if there is an agreement, primary legislation would probably be needed to implement it, which means that the full procedures for statutory approval would be required in order for there to be the power to make any payments-as I understand it, there are no legal grounds for making additional payments to the EU, and if the Government wish to do so, they will need legal grounds-and then to cover the full implementation of the agreement.
As so often, my right hon. Friend snatches the next words from my mouth. I was about to say that the House will, as he rightly observes, be called on to vote on primary legislation, as we understand it, which will of course require something called a money resolution, with which I know the hon. Member for Nottingham East is fully familiar because I have heard him make long speeches about them on several occasions. He is an expert at doing so, and no doubt he will enjoy doing so again when the relevant resolution comes before the House, but new clause 17 is not necessary to achieve the objective.
The right hon. Gentleman makes a fair point about wanting to probe the details of the new clause, which is specifically about amounts of money paid out without authorisation. He must agree that despite their name, money resolutions do not always specify a sum of money. A draft withdrawal agreement would not necessarily have to set out the amount of money, either. If he has heard otherwise from the Government, I would be interested to know.
I do not think there is the slightest chance that a withdrawal agreement will be put before the House that does not specify, or enable one to calculate, an amount of money, because there is no indication that the EU would accept such a thing. Whether or not we should be paying such an amount is a separate matter. In any event, as my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) just said from a sedentary position, if that is a deficiency of a forthcoming money resolution, it is a deficiency shared by new clause 17, which also does not stipulate anything about an amount. One way or the other, I fear that the new clause is otiose. It has given an admirable opportunity for the hon. Gentleman to make an interesting speech, but that is its only virtue. The House should have nothing further to do with it.
I am just puzzling over how the Government think this will work. Has my hon. Friend thought about this: it is highly likely that we will make not one big payment, but a number of payments over a period of time, which means that the payment could be spread into another Parliament? Given that no Parliament can bind its successor, how does she think that the Government can make this agreement?
That is a very interesting point. As a fellow member of the Select Committee on Procedure for several years, I am not surprised that my hon. Friend has spotted this. I would be fascinated to hear what the Minister has to say about that when he gets to his feet later this evening. Parliament ought to have the ability to debate, scrutinise and reach its own conclusion on this matter. If we do not, we will be the only people not tussling with it. This Parliament wants to do as the people said we should: take back control. The Chief Secretary to the Treasury said in response to an urgent question from my hon. Friend the Member for Nottingham East (Mr Leslie) that to give Parliament details about the settlement“would not be in our national interestâ€- That is not good enough. She said that she will “update the Houseâ€ when there is more to say, but we do not want to be updated; we want the ability to decide.
As well as upset Members in this House, does the hon. Lady not envisage thousands of upset people outside this place-namely, our constituents?
I absolutely agree. If the incredibly inadequate estimates procedure were used, an awful lot of my constituents would say to me, “Why did you not talk about this?â€, and I would have to say, “Because it didn't happen to be picked by the Liaison Committee and therefore we had to talk about something else and couldn't vote on specifically amending this matter.â€ That would be a major concern to people here and people outside. It would be great if the Government could give the commitment today that any vote on the divorce bill will not happen through the estimates procedure and will be properly scrutinised on the Floor of the House. It is really important that we do get House of Commons approval for any financial settlement that is agreed on. It absolutely has to be agreed by this House. I would prefer it also to be agreed by the House of Lords. It would be sensible for it to have as much scrutiny as possible before any agreement happens. We are making it very clear that that is very important to us. Last week, I called for the Chancellor to bring forward an emergency Budget. The Budget that we had the week before last made no mention of payments in relation to a withdrawal settlement, but the Chancellor must have had some idea about this. I can only assume that he did, but given that the DUP did not know what was going on with the agreement that had been made on Monday, perhaps he did not. He should have had some idea of the ballpark figure that was going to come out in the news the following week, and therefore it should have been in the Budget. As it was not in this year's Budget, the Chancellor needs to come to the House and introduce an emergency Budget explaining how he is going to pay this bill-which taxes he is going to raise, perhaps-and where the money is going to come from, and then this House should properly debate the matter.
I agree with the hon. Lady to a large extent. We do not want hidden protocols whereby certain secret agreements about expenditure do not come before the House. We want full exposure and a comprehensive view of this.
I absolutely agree with the hon. Gentleman, with whom I used to serve on the Scottish Affairs Committee. This does need to be as transparent as possible. Every bit of money that is agreed between the UK Government and the EU as part of the withdrawal settlement needs to be itemised. We need to know what the UK is agreeing to pay for and the timescale over which we will be paying it.
I entirely agree with the points that the hon. Lady is making. It was interesting that this afternoon in the Treasury Committee, the Chancellor acknowledged that the cost to the UK of settling any outstanding debts with the European Union will be small beer compared with the costs if we do not get a good long-term trading relationship with the EU. There are two issues: the short-term cost and the impact on the scorecard, and the long-term cost to the economy and the damage that that will do if we cannot move on to phase 2 of these talks.
I absolutely agree. I will come on to the more indirect costs in a moment, but first I want to mention one more thing in relation to direct costs. There is still ongoing uncertainty about the replacements, or possible replacements, for EU structural funds-for example, the Horizon 2020 money, the social fund and the common agricultural policy payments. We have a level of certainty on some of those in the very short term, but what happens after April 2019? What happens to the projects that currently receive money, or are likely to be bidding for money in future? What are the UK Government going to do to replace those funds? We do not have any certainty on the replacements for most of the direct funding. I now move on to the indirect costs of Brexit. I am totally baffled as to whether or not there are economic impact assessments. The UK Government told us that there were impact assessments. They were incredibly clear that there were impact assessments and so they definitely knew how this was going to impact on the economy. Then, at the Brexit Committee, the Secretary of State said that there are no economic impact assessments. Any kind of responsible organisation does an economic impact assessment-before it takes an action, preferably. If an organisation is in this crazy situation where it has signed up to an action and drawn all these ridiculous red lines, it will probably be wise to do the economic impact assessments then so that it has an idea of quite how much of a mess it has got itself into.
I do not know whether the hon. Lady is one of a number of MPs, including me, who put in a freedom of information request to access these reports. The response we got was that they could not be released because the information contained therein would damage the UK's negotiating position. I do not know whether she has been to see the reports, but frankly there is nothing in them that could not be obtained by googling different sectors. I am not quite sure why that was used as an excuse for not releasing them to Members of Parliament.
I just want to make sure that I have understood what my right hon. Friend is saying. Surely what is being proposed here is that Ministers' ability to use secondary legislation to impose taxes should be constrained, and they will be allowed to impose charges-not that if the Brexit bill is ginormous and the public finances are in a mess, Ministers will have stood at the Dispatch Box now and committed never to increase income tax. That is the correct understanding, is it not?
My hon. Friend is absolutely right. The amendment simply constrains Ministers' ability to introduce new charges-she calls them taxes, and she has every right to do so-under the secondary legislation envisaged in schedule 4. What I hope the Minister will do is assure us that by “among other thingsâ€ he is not envisaging some great long list of new money-raising powers.
Before my right hon. Friend moves on, is it not worth considering those EU agencies, such as the European Medicines Agency, that are financed by charges on the industry, not by the taxpayer? We should really be hearing from the Minister how the Government propose to fund such agencies in future.
My hon. Friend is absolutely right. We come directly to that point in amendment 153, in which we propose to add to schedule 4 the words set out on the amendment paper, which I shall read out. We propose to constrain Ministers' powers by saying, first, that regulations“may not be made for the purposes of...creating a fee or charge that does not replicate a fee or charge levied by an EU entity on exit dayâ€. That is exactly the point my hon. Friend has just raised. We of course recognise that a lot of charges are imposed at the moment by EU bodies of one sort or another-she mentioned a very important one-and that, in future, comparable fees or charges may well need to be levied by UK entities, but the aim of the first paragraph of amendment 153 is to make it clear that Ministers cannot impose new fees or charges for which there is not already a counterpart from the EU entity.
The right hon. Gentleman is doing exactly what needs to be done in Committee, and I have considerable sympathy with his ambitions. Has he considered whether the reference to remedying deficiencies as the basis for secondary legislation powers under the Bill would in any case have the effect he is describing?
I had not considered that, and the right hon. Gentleman may well have a point. I would be interested to know whether that is indeed the case. That interesting point is certainly worth pursuing, and I would welcome it if he expanded on that later. Secondly, amendment 153 states that Ministers cannot bring forward regulations for the purpose of“increasing a fee or charge to an amount larger than an amount charged by an EU entity for the performance of the relevant function on exit day.â€Let me take the example my hon. Friend the Member for Bishop Auckland (Helen Goodman) mentioned. The European Medicines Agency does very important work, and it charges the industry for that work. I am suggesting that the secondary legislation powers in schedule 4 should not be used to introduce a charge for the same function that is higher than the one currently charged by the European Medicines Agency. There may well be a loss of economies of scale in leaving the European Medicines Agency, and it may well be that undertaking that function purely for the UK will be a less efficient process than doing it EU-wide, as the European Medicines Agency does, but I do not think the secondary legislation powers in the schedule should be used to impose on industry or any charge payer a fee that is higher than the one currently charged by the EU entity. I accept that there may well in due course need to be some higher fees or charges than those currently levied by EU entities, because the process may well be less efficient when carried out at a UK-only level, but I do not think the secondary legislation powers should be used for that purpose. If Ministers want to bring forward a proposal to impose a higher fee or charge, they should do so through the proper parliamentary process, with scrutiny by this House, not through secondary legislation powers.
One of the points made to me by those in the industry is that if these fees and charges shoot up, that will have an impact on their competitiveness, which is the last thing we want. Does that not reinforce my right hon. Friend's point?
Once again, my hon. Friend is absolutely right. Indeed, my amendments arise specifically from the discussions I have had with those in the tech sector who are worried about the prospect of being hit by substantially larger fees and charges in the future, which is exactly what the powers in the schedule would allow Ministers to do. I very much hope that the Minister will give us an assurance that these powers will not be used in that way, and that we will not find that industry and charge payers of other kinds are hit by fees or charges that are not being charged at the moment or are higher than those currently being charged. I very much look forward to the Minister's response.
Although new clause 17 may be otiose, to echo the right hon. Member for West Dorset (Sir Oliver Letwin), it does at least give Members the opportunity to express strong views on aspects of Brexit. I wonder whether among Government Members there is any sense of humility, shame or embarrassment about what they are inflicting on the country. Looking at the chaos and instability, and indeed the loss of influence, the UK has experienced in the past few months, I would have thought that some Conservative Members would be starting to question their enthusiastic endorsement of action that is weakening the United Kingdom and leaving us much, much poorer. I know there are Members on both sides of this House who were remain supporters and who are keeping quiet and biding their time. They tell me that they are waiting for the polls to shift before coming out and voicing their concerns about the impact of Brexit more openly. I point out to them that they do not have much time to wait for the polls to shift before Brexit goes ahead-if it goes ahead. I say “ifâ€ because there is nothing final about it. Clearly article 50 is revocable, and although the will of the people on 23 June last year expressed itself one way, current polling suggests a majority in favour of a vote on the deal.
The right hon. Gentleman's remarks so far are interesting. Is it not telling that those who urged the country to take this course-those who feel that Brexit will provide this dividend, these great riches-are amazingly mute today? When it comes to the crunch, they do not want to be seen to defend Brexit and the impact it will have on the public finances. I think they should be made to vote for the consequences of the actions they argued for.
I agree absolutely. That is why new clause 17, which the hon. Gentleman moved, is not otiose at all. It would put people on the spot: they would have to vote, hopefully for a figure. I hope the Government will want to do that, in the name of accountability and transparency. We need a figure, because there is a real risk. We have seen press reports that some arrangement will be reached whereby the Government and the leading leave campaigners within the Government will be saved the embarrassment of a very large-£45 billion to £50 billion-figure being put into the public domain. As several Members have said this afternoon, that is the down payment, not the final divorce settlement.
Speaking as one who voted to remain, I was disappointed on that Friday morning, but I accept the will of the people. Is the right hon. Gentleman suggesting that we ignore that decision made by the people of the United Kingdom?
I am absolutely not doing that. That is why I just referred to the idea of having a vote on the deal. The whole point of that is to have a public popular vote. We, the Liberal Democrats, have made it clear from the outset that the only way democratically to answer the question posed by the marginal result on 24 June last year-52% to 48%-is through a vote on the deal for everyone in the country. Before the hon. Member for Nottingham East (Mr Leslie) intervened, I was talking about current polling. The Survation poll suggested that 50% of the population now support the idea of a vote on the deal, and only 34% oppose it.
Does my right hon. Friend not agree that we should call this process a confirmation of the first decision? Then we could keep things very neutral: people could confirm that this really was what they voted for. What should any of us who are democrats be afraid of? If there is confirmation of the original decision, fine, but let us wait and see whether people want to confirm their original decision.
I certainly agree with the intent behind what my hon. Friend says, although I would hesitate to call the vote confirmation of the original vote; this vote would be different in nature, given the facts now available to us-given that the initial settlement will be £45 billion or £50 billion; that huge problems have been created at the border between Ireland and Northern Ireland; and that 16 or 17 months on, the issue of EU citizens here is still not resolved.
The right hon. Gentleman has sparked a highly relevant debate. The referendum asked whether we should leave or not. What we are debating in the Bill is how we leave. We have learned that the process is a series of decisions; there is not one way to leave the EU. We need to keep every option open, not shut doors as this Government are doing, so that if the public mood shifts, as it might well do, all options are open.
I agree. I am sure that the hon. Gentleman will regret, as many Opposition Members and I do, that very early on, the Government shut down some of the options available to us regarding the single market and the customs union. There was no attempt by the Government to negotiate with the European Union on whether there was scope for the EU to give ground, including on freedom of movement. I know from contacts that I have had that there would have been some appetite among some EU countries to give ground on freedom of movement, but that is not something that the Government sought.
We have had a huge election within the past six months. The Conservative party went into that election with a manifesto commitment to honouring the outcome of the June 2016 referendum. I am not sure that I quite understand what the right hon. Gentleman does not understand about what the result of that election meant for the representation of the parties in this House. The majority of Members in this House are elected on a platform of leaving the European Union.
The clearest outcome of the general election was that the hon. Gentleman's party lost its majority and is now in an unwieldy and dangerous relationship with the Democratic Unionist party. The route that the Government are going down-a particularly hard Brexit-was not endorsed in the general election.
We have discussed the Irish border an awful lot this week. Does the right hon. Gentleman agree that one obvious solution to the Irish border situation is for the whole UK to remain in the single market and customs union?
Absolutely; that is probably the only safe solution to the question of Ireland and Northern Ireland-and it is one that, unfortunately, our Government ruled out at the outset. They probably rue the consequences of that decision. I have strayed slightly from new clause 17, but I certainly do not think that the new clause is otiose. When the right hon. Member for West Dorset called it that, it reminded me of his term in the Cabinet Office. I am absolutely convinced that as a senior Minister with an overview of the activities of all Government Departments, he would never have accepted the Government's going forward with an economic project on the scale of Brexit without insisting that each Department conducted a decent impact assessment for all sectors for which it was responsible. If he disagrees and wants to say that when he was at the Cabinet Office, he would have been perfectly happy with the Government forging ahead in this way with the single biggest economic-and, I would say, most damaging-project that the country has undertaken in 50 years, I give him the opportunity to do so now. Members will note that he has not taken it. I think that must be taken as an indication that he not happy with Conservative Front Benchers, who have decided to proceed without conducting any impact assessments of Brexit. When Opposition Members heard from Ministers about impact assessments and sectoral analysis, we rightly expected the Government to have conducted an impact assessment of hard Brexit, of perhaps the Norway model and the Turkey model, of no deal and of our current arrangements to inform the House properly about the impact of Brexit. We would then have known about not just the down payment of £45 billion, or whatever it will be, but the long-term financial consequences for the automotive, pharmaceutical and agricultural sectors and all the other sectors that will be so greatly affected.
The right hon. Gentleman is making an incredibly powerful case about the importance of data. Just today, John Curtice has released information that proves that a majority of the British public now believe that Brexit will be bad for our economy, so even the British people have twigged that something is awry. Does the right hon. Gentleman think that the lack of impact assessments will compound that sensation?
The British public cannot but note the incompetence that our Government have shown. Whether they were leave or remain supporters, when they see a Government in chaos, conducting negotiations in a cack-handed manner, it is not surprising that they are beginning to worry about the impact of Brexit.
The right hon. Gentleman mentions impact assessments. I wonder whether our 27 friends in the EU might do a retrospective impact assessment of the time when David Cameron went to Europe to ask for some concessions on our arrangements as a member of the EU. He went for a basket of bread and came back with a basket of crumbs. The impact assessment should be directed at them. We would not be where we are today if things had been different. We should ask ourselves who has brought us to where we are. The answer is our friends in Europe.
We are here today debating the impact that the hon. Gentleman's Government will have on every single man, woman and child in this country by pursuing a hard Brexit agenda. I do not think he believed what he was saying when he tried to shift the blame to the EU for what happened to David Cameron's negotiations. However, I made the point earlier that if the EU had been faced with the realistic prospect of the UK leaving, I think it would have been much more amenable to making more substantial concessions. Hon. Members may be pleased to hear that I am about to conclude- Thank you. Apparently, Brexit is about taking back control. We therefore need to ensure that new clause 17 is put into statute so that Parliament has the opportunity to take back control and demonstrate whether we think that the down payment of £45 billion, £50 billion or £55 billion is a price worth paying for the views of a relatively small number of Brexit-obsessed Conservative Members of Parliament.
I want to speak in support of the new clause. I have listened to several hon. Members compare the purchase of houses and cars with Brexit. I have also heard Members point to the necessity of knowing exactly what we are buying. With such a large transaction looming, a simple figure is the least one should expect. Beyond that, however, I think it perfectly reasonable to ask how the figure was calculated. When I receive my bill in a restaurant, I expect to be able to see how much each item cost. I look at the bill, and then-hopefully-I pay. Alternatively, I dispute the bill, and say, “I was not taken with the main course.â€ Similarly, if I am looking at cars, I may say, “This car is not worth that.â€ If a survey has shown that there are serious problems with a house, I say, “I am not prepared to pay that: I expect you, the owner, to put it right first.â€
My hon. Friend is making a powerful case for parliamentary sovereignty, clarity and transparency. Do his constituents, like mine, not expect that when they elect a Member of Parliament, that Member of Parliament's job is to exercise sound stewardship of the money that they part with-the money that they give to the Chancellor and the Treasury when they pay their taxes? Would they not be mystified, and very angry, if they thought that we were nodding through £40 billion or £60 billion without specific authority? Would they not be absolutely astonished at the Government's implied proposition?
That clearly must be the case. There is an expectation on us to explain how the pounds, shillings and pence are spent, rather than just say, “Oh, it was just nodded through,â€ and when asked how much it cost, say “I have no idea.â€ That is unacceptable to those who send us here, and rightly so, because it is their taxes that pay for this; it is their work, their productivity and their hard graft-to use a phrase I heard earlier today-that raises the money to meet these bills. The draft of the instrument in new clause 17 and of the regulations in new clause 80 are put there on the expectation that there is some transparency. The events of the last few days, weeks, and certainly months would have seriously benefited from having had far more transparency about what is happening. It is not necessarily the case that keeping hidden a sector title of “Forestryâ€ aids our negotiations. If there were more transparency, the Government would have had far more useful and sensible advice from various industries around the UK. If they consider, even or stumble upon the idea of, an impact assessment for the regions, and perhaps if they share with the regions that that is being carried out, the regions-and indeed the devolved powers-could share some of their expertise, so that, as with these amendments, when measures come back to this House we may make a reasoned decision based on facts, influenced by our constituents' views and genuinely aiming to make the best of a situation that, much like the vaunted driverless cars, could be heading for an absolute disaster.
When the hon. Member for Nottingham East (Mr Leslie) moved new clause 17 he made a number of worthy points that need to be addressed. I will obviously be voting against the new clause if it is pressed to a vote, and I hope that that is the point, but in terms of the raison d'être of all of these amendments, the cat has been let out of the bag: the hon. Gentleman wishes to revoke article 50 and thereby overturn the will of 17.4 million people. That is the be-all and end-all-that is the raison d'être of what we have heard tonight. The whole tactic of these amendments-no matter how reasonable they might sound and how powerfully supported by some Members-is essentially to do-over the will of the British people.
The hon. Gentleman is being a little unfair. He should look at the text of the amendment, which simply says that the consequences of Brexit-the costs to the public and his constituents, who might have to fork out £1,000 per man, woman and child-should be authorised by this Parliament; we should take back control. The hon. Gentleman can imply all sorts of motives on my shoulders for tabling it, but it would be honourable if we could address the topic at hand.
I am addressing the topic. Does the hon. Gentleman deny that he wishes to revoke article 50 and turn over the will of the British people?
The point that I made was that article 50 can be revoked if the British public wish that to be the case. The Prime Minister has not denied that is the case; she might say that it is Government policy not to revoke article 50, but she has not said that it is impossible to do so. I was simply pointing out a legal reality.
The hon. Gentleman says he has pointed out a legal reality, but the Labour party's position on all of these matters is now no clearer than mud. Are we ultimately going to honour the will of the British people, enact this Bill, and withdraw from the EU? That is the bottom line. All these amendments are slowly but surely being exposed as having a different motivation. It was said earlier that there was a need to put the Brexit Members of Parliament on the spot and get them to vote for the consequences of Brexit. I will happily walk through the Division Lobby tonight to vote down new clause 17, for the very reason that I wish to put into practice and into law the will of the British people. They voted to leave, and we must bring it on and allow them to leave. Confusion has been allowed to reign as a result of the proposed amendments.
I have never heard anybody put this argument in quite this extreme way. The British public answered the simple question of whether they wished to leave the European Union, but that question carried within it hundreds of highly complicated sub-questions which now have to be addressed after the negotiations. Is the hon. Gentleman saying that we should not, for example, discuss the basis on which we make a contribution towards accrued pension liabilities during our membership of the European Union because our masters, the people, have decided that we must pay those accrued pension liabilities and are indifferent to how much that will cost? That is an absurd misuse of the one simple question about whether or not to stay in the EU.
The right hon. and learned Gentleman, the Father of the House, has been a Member of Parliament for many years, and he will know that it is only very occasionally that the British people are asked their view by way of a referendum. Indeed, that has probably happened on only two occasions in his lifetime. On both of those occasions, the will of the British people was enacted by this place. Yes, of course there is debate. Who says that there should not be reasoned debate? I do not say that, and I have not said that. Don't be silly- I am not saying it now. I am saying what the raison d'être behind the debate is, which is very different. Let us have the debate. I have actually used the words “bring it onâ€. If the Father of the House is suggesting that this occasion is just the same as every other occasion, I have to tell him, with due respect, that he is wrong. The will of the people has been expressed through a referendum. That is what makes this different.
Is not this debate bringing out the fact that the will of the people is a very mixed bag? Is it not therefore admissible for us to get close to the will of the people through these debates and, if it appears that we are going to get a great result out of Brexit, to go to the people again and ask them to confirm or reject their original decision? That is what I call democracy.
The hon. Lady has made the point about having a second referendum on a number of occasions, and I believe that the proposal has been rejected. She is of course entitled to keep making that call, but I believe that it will continue to fall on deaf ears. However, she is right to continue to fight her corner.
The hon. Gentleman says that the proposal has been rejected. He might have heard me refer earlier to a Survation poll at the weekend which confirmed that 50% of people now support the idea of a vote on the deal, and that only a third of them oppose it.
Yes, and every single poll that I have read about myself and my party tells me that I have lost every election, but in reality I have won them all. The poll that ultimately counts is the one that is taken by the people.
Does the hon. Gentleman agree that the logic of the Lib Dems' position-which they certainly did not put forward on Second Reading of the Bill that introduced the provisions for the referendum-is that we should have three referendums? In that way, it could be the best of three, or they could carry on until they got the result they wanted.
My hon. Friend puts his finger on a very Irish solution to the problem. I remember the Lisbon treaty. The Irish voted against it, but they were told by their political masters that they had made the wrong decision and had to vote again. This is ultimately a ruse to ignore the will of the British people, as expressed in a referendum on this matter.
I just want to get the hon. Gentleman on the record saying that, whatever happens to public opinion and however bad the negotiations go, even if the 50% who believe that there should be a vote on the deal grows to 90%, he is adamant that, because of the vote on 23 June 2016, nothing can ever change.
In the same way that public opinion changed from 1973 to the present-
I will take your instruction, Mr Hanson, but I think that the right hon. Member for Carshalton and Wallington (Tom Brake) knows where I stand on that point. I was hoping to hear some clarity from Labour's Front Bench tonight, instead of more confusion. I was hoping to hear some key arguments about why the Opposition are putting forward some of these amendments to deal with the consequences of the divorce bill. I wanted to hear them deal with who should pay, with freedom of movement and with the single market. I wanted a hard and fast line, but I am afraid that we heard even more confusion. We have had a diet of this confusion for some time. The right hon. Member for Hayes and Harlington (John McDonnell) said that we must leave the single market and respect the referendum result. The hon. Member for West Bromwich East (Tom Watson) said that we should stay in the single market and the customs union permanently. The hon. Members for Leicester South (Jonathan Ashworth) and for Darlington (Jenny Chapman) said on another occasion that we have to leave the single market. The right hon. Member for Hackney North and Stoke Newington (Ms Abbott) said that we should keep freedom of movement. The right hon. Member for Islington North (Jeremy Corbyn), the Leader of the Opposition, and the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Brexit Secretary, have said that freedom of movement ends with Brexit. We really need more clarity from the Labour party. If it is going to try to persuade us on these key issues, it needs a single position. At least the Government, for all the problems that have been pointed out, have a single position. I think that would be a good starting point.
I am pleased to have the opportunity to support new clause 17, moved with great elan by my hon. Friend the Member for Nottingham East (Mr Leslie), new clause 8, tabled by the Labour Front Benchers, and amendments 152 and 153, tabled by my right hon. Friend the Member for East Ham (Stephen Timms). It seems completely reasonable for the House to expect the Government to produce papers explaining the basis of the payments that we will have to make in order to secure a successful Brexit. We want to know from the Government in writing what legal obligations they accept, what they agree to in relation to our obligations under the current five-year EU budget, what they believe our long-term liabilities are-such things as pensions-and how our share of the EU's assets are being taken into account in the calculation. For example, it would be extremely helpful to know the Government's position on the European Investment Bank, because we still do not have clarity on that. That will obviously play some part in the divorce Bill. We need to know what the number is, but we also need to know whether it has been worked out in a reasonable way, because at the moment it is not at all clear how the assessment has been made. We are asking for a parliamentary opportunity to look at this. We also want to know Ministers' plan for how the payment will be made. What will be paid earlier and what will be paid over time? What account will Ministers take of fluctuations in the exchange rate? The pound has fallen by 12% since the referendum in the summer of 2016. That is not a huge amount, but it has a significant impact on these numbers. If the Government agree a figure of £50 billion, it would increase the bill by €6 billion or £5 billion. How will the Government manage such exchange rate risks?
Does the hon. Lady agree that a good way for the Government to publicise precisely how much the bill will be is for them to put the figure on the side of a red bus and for senior members of the Government to drive around the country publicising the £45 billion down payment?
That is a good, eminently sensible idea. I will return to the public's attitude when I wind up my remarks. This is a significant sum. When we bailed out the banks 10 years ago, we spent £133 billion. Now we are talking about a figure of £50 billion, which will have a significant impact on the public finances. I am sympathetic to the remarks of the hon. Member for Aberdeen North (Kirsty Blackman) on the inadequacies of the current estimates procedure. Given that this is an exceptionally large sum of money on an exceptionally important item, and given that this is exceptionally politically sensitive, we expect a much better way for Parliament to approve the sums of money. That is what new clauses 17 and 80 are driving at. I am worried about the impact on the public finances. Not only is this a big number, but it seems to be a big number that the Chancellor did not take into account when putting together the Red Book, in which he included the current net payments to the EU of £9 billion a year up to 2019 and, thereafter, £12 billion a year of continued expenditure on items coming back to this country that are currently the responsibility of shared EU programmes, such as agricultural support, universities and R and D. He put in £3 billion for transitional costs, such as new computer systems at HMRC and the Rural Payments Agency, but he did not put anything in for the divorce bill. His forecast of the deficit coming down and of debt starting to fall towards the end of this Parliament is bound to be wrong unless the Government present the British people with a whopping great tax bill.
Does my hon. Friend agree that, considering our current trajectory under this Government, the other big black hole in the Red Book is how much we will have to pay for access to the single market after we leave?
My hon. Friend is right, but I am confining myself to the impact of new clauses 17 and 80. We need to understand how Ministers will cope with this big bill when the deal is done. Will Ministers give everybody a massive tax bill-and it will be a massive tax bill, because we are talking about at least £800 per person, or £3,000 per household-or will they increase Government borrowing? I return to the simple point about the promises that were made by, among others, the Under-Secretary of State for Exiting the European Union, the hon. Member for Wycombe (Mr Baker), during the referendum campaign-the £350 million a week for the NHS that we saw on the side of a bus. This is £16 billion a year. After the Brexit vote, I had a number of public meetings with my constituents and asked them what their expectation was when they voted to leave the EU. I will never forget this nice old lady saying, “Helen, it will be marvellous, because now there will enough money for the Government to reopen the A&E in Bishop hospital.â€ That is obviously not what the Government have in mind. It is incumbent on them to be open and clear with the British public, and that is what new clauses 17 and 80 are driving at.
We have all heard the famous phrase “a week is a long time in politicsâ€. Well, it has now been almost 18 months since the public voted to leave the EU and in that time lots of new issues have come to light. From leaving the single market and customs union, to the renewed tensions over the Irish border, we know things now that voters could not have been expected to know all those months ago. We also know that the Brexit divorce bill is likely to cost the Treasury upwards of £50 billion. That is almost £2,000 per household that could have been put to more positive use but instead becomes the opportunity cost of Brexit. Some people will say, “That's money that would have been paid to the EU anywayâ€, and to some extent they are right. The difference is, however, that the money we paid to the EU in the past bought us collective benefits and access to shared resources, such as Euratom and the European Medicines Agency, that are now at risk as a result of Brexit.
I am not sure whether the hon. Member for Nottingham East (Mr Leslie) listed as one of the costs of Brexit all the costs to us as a nation-individually-of establishing all the agencies we currently share with the EU.
I thank the right hon. Gentleman for his remarks. We have no idea how much extra it is going to cost us to establish our own agencies to cover the roles of the many European agencies we have shared. This opportunity cost is not simply about the raw cash we need to spend; it is also about the time and other resources devoted to making this happen. When I stood for election to Parliament, I had in my mind a long list of issues I wanted to address and ideas I wanted to drive forward to make this country a better and fairer place. Instead, I find that much of the time in this House is now being devoted to tackling the myriad problems that have arisen, and working to reduce the harm that may come to our country and our economy from leaving the EU. This whole process is not just an opportunity cost-it is also an opportunity lost. Nobody in my constituency who voted to leave the EU voted to make our NHS worse off. They wanted to see it improve and, if anything, were persuaded by a somewhat misleading figure on the side of a bus, but the threats to our health services are very real. Just yesterday, Dr Jeanette Dickson, from the Royal College of Radiologists told the Health Committee that the isotopes we import for cancer treatments could be rendered useless by delays in the customs process. Quite simply she told us, “If we do not have an assured supply, the reduction in rate of cure means more people will die of thyroid cancer.â€ That is thousands of lives every year that will be at risk if we get this wrong. Voters did not vote to make their family poorer either; they genuinely wanted to see our economy thrive and believed that exiting the EU would bring renewed prosperity for their families. But with slowed economic growth, a collapse in the value of the pound and rising costs of imports, that flourishing economic future seems a far cry from this Government's current performance.
Earlier in this debate, I was accused of having an extreme view on something. Is it not rather extreme to suggest that people are going to die of cancer because of this? Seriously, listen to yourself!
I recommend that the hon. Gentleman looks at what was said by the expert who provided evidence to the Health Committee yesterday. She explained what would happen if we get this wrong-what I suggested was conditional, because I said “ifâ€ we get this wrong. She said that radio isotopes that we do not produce currently in the UK and need to import from other European countries, and that are essential for cancer treatment, will not be available to provide that treatment.
Just to add a little more on that, these isotopes often have a half-life of six hours, which means that within 24 hours they are effectively useless for treatment. We do not have the ability to produce them here so they must be imported. If we are not part of the Euratom treaty, we will have serious problems with cancer treatment. It is not scaremongering, it is fact.
I thank the hon. Lady for adding to the evidence. We must listen to the evidence. As we know, the proposals before us would require the divorce bill to be assessed by independent watchdogs, and I support that. It is important that the information that comes out of the Government's negotiations with the EU is properly scrutinised in this Chamber and beyond. As a scientist, I learned to follow evidence. When new evidence emerges, so must our course of action change. As a doctor, if a test carried out on a patient revealed a totally unexpected result, I would repeat the test again rather than plough on with a process that I thought would harm the patient. For some years, medical professionals used to say that smoking was not a risk to people's health, and they also used to tell pregnant mothers that moderate drinking during pregnancy posed no risk to the health of their child. With the benefit of hindsight, new information and the evidence we have now, how ridiculous do those statements seem? We must continue to keep an open mind and to scrutinise the divorce-bill negotiations and Brexit more widely. As the opportunities seem to diminish and the potential for harm to our economy and society increases, we must also be willing to ask whether this is what the public voted for. Yes, we have a duty to act on behalf of our constituents, but as representatives, not simply delegates. I promised the residents of Stockton South that I would fight and work for them all, regardless of how they voted. The public must have the right to change their minds; that is one of the key aspects of democracy. It is why we have elections every five years-or perhaps more often. If public opinion shifts, we must all be able to look at matters again. Attention to detail and accountability to Parliament are crucial to the Brexit process, and particularly the divorce bill. That is why I shall support new clauses 17 and 80 tonight.
I am grateful for your comments, Mr Hanson. You are right I have not been present in this particular debate for the whole time, but I have been in many of the debates and this is the first time I have stood up to speak on the issue. I shall not detain the Committee for very long. Following on from the comments made by my hon. Friend the Member for Stockton South (Dr Williams), of course people in every democracy have the right to change their minds. The correct way to do that is through the same means by which the referendum came about in the first place: a political party should say in its general election manifesto that it wants a referendum, win that election and hold another referendum. The Lib Dems tried that at the most recent election; admittedly, they gained seats, but they lost votes. That is the way to do it, not by calling on the most immediate opinion poll. Opinion polls change. My hon. Friend the Member for Stockton South and other Members may be interested in a poll taken by Lord Ashcroft the day after the referendum. He surveyed all those people who had voted for Brexit and found that 94% of them had not voted for it on economic grounds, so a lot of the arguments about economics do not apply to the people who voted to leave.
To clarify a point, the 2015 Labour manifesto opposed a referendum; Labour was led then by my right hon. Friend the Member for Doncaster North (Edward Miliband). Two weeks after the general election, we were whipped to vote for the piece of legislation that enabled that, and the Labour party did so. Did my hon. Friend think that we were wrong because it was not in our manifesto? We opposed a referendum in the manifesto
I have to say that I found it a bit curious, having voted for a referendum for many years, to find all my Labour colleagues finally in the same Lobby as me. The argument given by the leadership at the time was that the election had been lost, the public had voted by a majority for a referendum and it was going to recognise that. On the financial issues, I am always in favour of transparency, which is what the essence of this argument is about. It is difficult for any Member not to be in favour of transparency, but with regard to the actual wording of the amendments, they are rather biased in terms of costs and do not, as I would have preferred, put the savings in the context of what we do not have to spend. As has been said, in all certainty, net, there will be a saving. People opine that there will be huge costs to leaving the EU. I do not know what the Government are likely to pay or not pay. I suspect that they will end up paying too much, but if we look at the history of the common market and the EU, over that period, we have probably paid half a trillion pounds net-a huge amount of money. What has been the benefit of that? We have gone from having a balanced trade with the EU to running a deficit of about £70 billion a year.
I am incredibly grateful to my hon. Friend for giving way. I accept the point that there could be savings or, in my view, much bigger costs, but could we at least agree, here and now, that the £350 million a week for the NHS, which was on the side of that big red bus, is not going to happen?
I do not know what decisions will be made. I believe that the Government are likely to pay too much. Let us ask ourselves: why would we be paying money so that the rest of the EU can trade with us and every year sell us £70 billion more in goods than we are selling to the EU? Why is that a deal that we should be keen to support? I suspect that the Government will come back and put it to-
Whatever my hon. Friend's feelings towards the European Union, he has just said that he fears that we may pay too much, whatever the number is. New clause 17 is about knowing what that number is. Surely he must support that principle. Then we can answer the question about whether it is too much, not enough or completely irrelevant.
I hope that my hon. Friend was listening to me when I was arguing in favour of transparency. I was arguing against the particular wording of these amendments, which I believe to be biased. Of course we should be transparent about what things cost, and we should have the right to have a view and determine what we think about that. Who could argue against that? All I am saying is that, if we are paying £40 billion over 40 years, that is probably against £400 billion that we would be paying, and that should be the context in which these figures are produced.
I am sorry about this, Mr Hanson. I will not give way again after this intervention, because I did say that I would not take much time.
As a member of the Labour party, the hon. Gentleman should understand the word “solidarityâ€. He has just been talking about the fact that Europe is much more than just a financial project. Is this not about European solidarity and we, as one of the richest countries in the world, acting in solidarity with people and countries in eastern Europe, which, for decades, have been losing out? Now we are helping those countries and their democracies to thrive.
There could be a very long answer to that question, which I will not give. All I will say is that the EU-and this is one of my reasons for voting to leave it-has had a hostile view to democracy and national sovereignty from its very conception. I believe that we should have solidarity with those countries that are moving towards democracy and improving the rights of their citizens, but I have never believed that the EU is a body that can do that. There has been an assumption in the debate not only that the finances and paying for a trade deal were good things, but that most of the regulations that came from Europe have been good and most of the application of those regulations has been good. There are many regulations that are not good. The clinical trials directive is the obvious one, which I have discussed with my hon. Friend the Member for Nottingham East (Mr Leslie) previously, but there are many others, including the electromagnetic field directive, which nearly wrecked much of our medicine. There has been an anti-scientific view from the EU that has stopped the development of genetically modified organisms in the EU. One has to take a balanced view. There have been good things from the EU, but there have also been many negative and bad things. Finally, the essence of many comments that have been made today is that it is difficult to become an independent country. These are essentially the arguments of imperialists. It is not that difficult for a powerful economy such as ours to take over its own democracy and become independent again.
I was here for seven hours on Monday before I spoke, so I feel that I can say at least a few words today. We face a fundamental choice in this debate. Are we still a parliamentary democracy, or do we simply-because of a very narrow vote on 23 June 2016-take our eyes off of the detail and go like lemmings towards anything in order to implement a decision that is thought to be irreversible? The leave campaign told us that it was about taking back control. The reality is that this Parliament must assert itself and take back control from an overweening and incompetent Executive who want Henry VIII powers in their Bill and wish us just to be supine-to lie down and accept anything that they come forward with. That is why my hon. Friend the Member for Nottingham East (Mr Leslie) tabled new clause 17, which I am delighted to support. It would mean that there has to be an independent assessment of the costs of the Government's proposals. We in this House-this democratic Parliament -can then assert centuries-old tradition against overweening Executive power. We can decide democratically. We can assert and take back control. That is why we need to vote for new clause 17 and support the associated amendments.
Does the Minister accept that we should hope that those fees and charges will be lower than those that have been paid until now to EU institutions?
I am happy to tell the right hon. Gentleman that, as a good Conservative, I certainly hope to reduce the costs on businesses and individuals. I will come to his amendments in a moment. New clause 17 and amendment 54 show an understandable desire to protect the role of this House, but they are not necessary. The Government have always been clear that the negotiated financial settlement will be part of our withdrawal agreement and that the House will be given a vote on that agreement. My right hon. Friend the Secretary of State for Exiting the European Union was very clear on 13 November when he announced the withdrawal agreement and implementation Bill. He said that, as one of the principal elements of our agreement with the EU, we expect that legislation to include authorisation to pay any financial settlement that is negotiated with the EU. The Bill we are debating today is about ensuring that the statute book is operational on exit day, not about paying any settlement. The same argument applies to new clause 80.
The Minister says that there will be an opportunity to vote on the finances, but only as part of the entirety of the proposed withdrawal agreement. Would it not be proper, as is the case with many other financial issues, for the House separately to authorise financial expenditure in relation to exiting the European Union? Surely the Government should commit to that power for the House of Commons, or will he deny us that opportunity?
I am confused by the hon. Gentleman, because he is such a diligent Member of the House. I explained moments ago that we will bring forward the withdrawal agreement and implementation Bill, which will cover any financial settlement, among other withdrawal issues. I would of course expect that Bill to go through the normal legislative processes, during which he and other right hon. and hon. Gentlemen will have a full opportunity to scrutinise those provisions. I turn to the amendments tabled by the right hon. Member for East Ham (Stephen Timms). The power in part 1 of schedule 4 can be used to create fees and charges of the type that amendment 153 is concerned with. That power can be used to establish new fees only in relation to functions being transferred to UK entities under the powers in this Bill. In most cases, one might expect that it will be replacing a fee set at EU level, but in some cases it may be right that it will be better value for the taxpayer and for users of the services to create a new fee to pay for functions that the UK previously funded through the EU budget. Amendment 152 does not recognise the need for adjustments to other, peripheral aspects of the fees regime in connection with charging fees or other charges-for example, arrangements for refunds, which I think all Members can agree should be possible so as not to leave ordinary hard-working fee payers unfairly out of pocket. Furthermore, future Governments, in the fullness of time, may wish to simplify charges, amalgamate them, or charge less for one function or another.