[2nd Allocated Day]
Further considered in Committee
[Dame Rosie Winterton in the Chair]
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 will certainly bring that to the attention of the Public Bill Office and see what we can do to help.
New Clause 2
Retaining Enhanced Protection
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend or modify retained EU law in the following areas—
(a) employment entitlement, rights and protections;
(b) equality entitlements, rights and protections;
(c) health and safety entitlement, rights and protections;
(d) fundamental rights as defined in the EU Charter of Fundamental Rights.”—(Matthew Pennycook.)
This new clause would prevent delegated powers from other Acts being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 15—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—
“HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.”
This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK law if the UK had remained a member of those institutions beyond exit day.
New clause 25—Treatment of retained law—
“(1) Following the commencement of this Act, no modification may be made to retained EU law save by primary legislation, or by subordinate legislation made under this Act.
(2) By regulation, the Minister may establish a Schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Regulations made under subsection (2) will be subject to an enhanced scrutiny procedure including consultation with the public and relevant stakeholders.
(4) Regulations may only be made under subsection (2) to the extent that they will have no detrimental impact on the UK environment.
(5) Delegated powers may only be used to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of environmental protection.”
This new clause provides a mechanism for Ministers to establish a list of technical provisions of retained EU law that may be amended by subordinate legislation outside of the time restrictions of the Bill.
New clause 50—Continuing validity in the United Kingdom of European Union law—
“(1) The European Communities Act 1972 shall continue to have effect in the United Kingdom after the date on which the United Kingdom leaves the European Union as if the United Kingdom continued to be bound by the Treaties.
(2) Accordingly all such rights, powers, liabilities, obligations and restrictions created or arising by or under the Treaties, and all such remedies as provided for by or under the Treaties, as in accordance with the Treaties are without further enactment given legal effect or used in the United Kingdom shall continue to be recognised and available in law, and be enforced, allowed and followed accordingly.
(3) Subsections (1) and (2) do not apply to any primary legislation passed by Parliament coming into force after the date of exit from the European Union which includes a provision to the effect that that Act, or specified provisions of that Act, have effect notwithstanding the provisions of section (Continuing validity in the United Kingdom of European Union law)(1) and (2) of the European Union (Withdrawal) Act 2017.”
New clause 51—Duty of review of European Union law—
“(1) The Prime Minister must lay before Parliament within six months of the date of the United Kingdom leaving the European Union, and at least once a year thereafter, a review of all European Union legislation and decisions still applicable to the United Kingdom, with proposals for re-enactment, replacement or repeal by the United Kingdom Parliament of any provisions of European Union law, with or without modification, as United Kingdom legislation.
(2) The House of Commons may appoint or designate one or more select committees to consider any report under subsection (1).”
New clause 55—Treatment of retained law (No. 2)—
“(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act.
(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.
(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State after approval in draft by both Houses of Parliament, which must include consultation with the public and relevant stakeholders.
(4) Delegated powers may be used only to modify provisions of retained EU law listed in any Schedule made under subsection (2) to the extent that such modification will not limit the scope or weaken standards of equalities, environmental and employment protection, and consumer standards.”
This amendment would qualify the powers conferred to alter law by statutory instrument after exit day.
New clause 58—Retaining Enhanced Protection (No. 2)—
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend, repeal or modify retained EU law in the following areas—
(a) employment entitlement, rights and protection;
(b) equality entitlements, rights and protection;
(c) health and safety entitlement, rights and protection;
(d) consumer standards; and
(e) environmental standards and protection.”
This new clause would ensure that after exit day, EU-derived employment rights, environmental protection, standards of equalities, health and safety standards and consumer standards can only be amended by primary legislation or subordinate legislation made under this Act.
Amendment 200, in clause 2, page 1, line 12, after “passed” insert “and commenced,”.
Amendment 87, page 1, line 19, at end insert
“or any enactment to which subsection (2A) applies.
‘(2A) This subsection applies to any enactment of the United Kingdom Parliament which—
(a) applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006,
(b) applies to Scotland and does not relate to matters specified in Schedule 5 to the Scotland Act 1998,
(c) applies to Northern Ireland and does not relate to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”
This amendment would alter the definition of EU retained law so as only to include reserved areas of legislation. This 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.
Amendment 201, page 1, line 19, at end insert—
“(2A) For the purposes of this Act, any EU-derived domestic legislation has effect in domestic law immediately before exit day if—
(a) in the case of anything which shall apply or be operative from a particular date, applies or is operative before exit day, or
(b) in any other case, it has been commenced and is in force immediately before exit day.”
Clause 2 stand part.
Amendment 217, in clause 3, page 2, leave out lines 13 to 22.
This amendment, along with Amendment 64 to Schedule 8 would exclude the European Economic Area agreement from the Bill, allowing the UK to remain in the EEA.
Amendment 356, page 2, line 22, at end insert—
“(2A) A Minister of the Crown may by regulations provide for prospective EU legislation to form part of domestic law as it has effect in EU law, from the time at which it begins to apply or from some later time.
(2B) In subsection (2A) “prospective EU legislation” means—
(a) an EU regulation which is adopted, notified or in force immediately before exit day, or
(b) EU tertiary legislation made under retained EU law, so far as it is not operative immediately before exit day.
(2C) A statutory instrument containing regulations under subsection (2A) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
The amendment would allow Ministers, with parliamentary approval, to apply EU legislation which has been passed before exit day but does not take full effect until after that day, along with subordinate measures made for the purposes of EU legislation which is retained under the Bill and taking effect after exit day.
Clause 3 stand part.
New clause 29—Parliamentary vote on withdrawal from European Economic Area—
“The requirement of this section is that each House of Parliament has passed a resolution in the following terms—
That this House supports the United Kingdom’s withdrawal from the European Economic Area.”
This new clause describes the requirement for each House of Parliament to agree to withdrawal from the European Economic Area and is linked to Amendment 128 which makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on such agreement.
Amendment 128, in clause 9, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the requirement of section (Parliamentary vote on withdrawal from European Economic Area) have been met.”
This amendment makes the exercise of the power to make regulations implementing the withdrawal agreement contingent on the requirement for separate agreement on withdrawal from the European Economic Area of NC29.
New clause 22—EEA Agreement—
“(1) No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise.
(2) Regulations under this Act may not make any provision that would constitute a breach of the United Kingdom’s obligations under the EEA Agreement.
(3) Regulations under this Act may not amend or repeal subsection (1) or (2).”
New clause 9—European Economic Area—
“The United Kingdom shall, after exit day, remain a member of the European Economic Area as set out in the European Economic Area Act 1993, and the provisions in Part 2 of Schedule 8 relating to the United Kingdom‘s membership of the EEA shall not take effect until such time as Ministers have published a White Paper assessing the costs and benefits for the UK economy of remaining a member of the European Economic Area after exit day.”
This new Clause would ensure that the UK can remain a member of the European Economic Area until such time as Ministers publish a specific assessment in the form of a White Paper setting out the costs and benefits for the UK of remaining a member after exit day.
New clause 23—EFTA membership—
“The Secretary of State shall, no later than six months after this Act has gained Royal Assent, lay a report before Parliament setting out an assessment of whether it would be in the interests of the United Kingdom to join the European Free Trade Association (EFTA) and, if so, whether it should remain a party to the EEA Agreement as a member of EFTA.”
New clause 45—European Economic Area (No. 2)—
“Nothing in this Act authorises the Prime Minister to give notice under Article 127 of the EEA Agreement of the United Kingdom’s intention to opt out of the EEA.”
Amendment 64, page 54, in schedule 8, leave out paragraphs 12 to 17.
This amendment would retain the provisions of the European Economic Area Act 1993 as part of domestic legislation beyond exit day.
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?
I could not agree more. That is exactly what new clause 58 would do; it would provide enhanced protection for equality, rights and protections after we have left the EU.
Taken at face value, clauses 2 to 4 appear relatively straightforward. But, as many hon. Members who spoke in yesterday’s debate made clear, the Bill as drafted creates a considerable degree of ambiguity and uncertainty as to the status of retained EU law. Currently the status of rights, protections and standards underpinned by EU law is distinct.
Treaty provisions and regulations that take effect through section 2(1) of the ECA are neither primary nor secondary legislation. The principle of the supremacy of EU law and the ECA means that, in practice, they have a particular constitutional status that enables them to take priority over primary legislation enacted by Parliament. Similarly, secondary legislation made under section 2(2) of the ECA is distinct from other secondary legislation in that it could take priority over primary legislation because of the fact that it is giving effect to an EU law obligation. Primary legislation that gives effect to an EU law obligation could be amended by Parliament, but any removal of an underlying EU law could be challenged in the courts.
Post-exit, it is unclear what status—primary, secondary or something else entirely—retained EU law will have. From schedule 1, one might draw the inference that retained EU law has the characteristics of secondary, rather than primary, legislation. Yet paragraph 19 of schedule 8 provides that, for the purposes of the Human Rights Act 1998, direct EU legislation
“is to be treated as primary legislation”,
although this schedule does not cover those rights recognised and made available in domestic law after exit by means of clause 4.
Clauses 5 and 6 provide guidance as to how the courts should interpret retained EU law in the event of a conflict with an enactment passed after exit day, but it is not yet clear—as we debated at length yesterday—whether the courts will treat particular retained EU laws as constitutional legislation that is not susceptible to implied repeal.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness of the legislation and it is crucial that it is clarified and addressed on the face of the Bill. But, irrespective of what status particular retained EU laws are eventually accorded, this new category of law—detached from the enhanced protection enjoyed as a result of being underwritten by our membership of the EU—will be vulnerable to amendment not just from the delegated powers contained in this Bill, but from subordinate legislation contained in other Acts of Parliament.
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.
I could not have put it better myself. That is precisely the problem, and that is precisely what new clause 58 seeks to address.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness, but irrespective of what happens, retained EU law, as defined in the Bill, is vulnerable to secondary legislation contained in other Acts of Parliament, which will have been drafted in a very different context—in the context of a country whose long-term future appeared to reside unambiguously in the European Union.
Perhaps the most potent example is the Legislative and Regulatory Reform Act 2006. Part 1 provides for Ministers to introduce statutory instruments to remove burdens resulting from legislation, including primary legislation. A burden, for the purpose of that part of the Act, includes a financial cost or
“an obstacle to efficiency, productivity or profitability”.
That Act is a potent piece of legislation as it is, but it will be far more so as a result of this Bill if it can be used to alter a raft of EU rights and protections that are currently underpinned by EU provisions.
This is not just about the powers in the Legislative and Regulatory Reform Act. Other examples come to mind, such as section 5 of the Localism Act 2011 and section 11 of the Public Bodies Act 2011. All contain wide powers to alter regulations, and all were passed in the constitutional context of our rights and protections being underpinned by our EU membership. All will become more powerful after exit today.
Retained EU law would also be vulnerable to recently proposed legislation and legislation currently making its way through this place. For example, the Nuclear Safeguards Bill, which is currently in Committee in this House, contains proposed new clause 76A(6) to the Energy Act 2013, which provides that the delegated power in section 113(7) of the Energy Act can be used to make changes to retained EU law. Similarly, clause 2(6) of the recently published Trade Bill provides for regulations that can be used to modify primary legislation, including retained EU law. The same, we can only assume, is likely to be the case for the immigration, agriculture and other Bills we expect in the coming months as part of the process of legislating for Brexit.
New clause 58 would ensure that regulations of the kind provided for by those Bills could not be used to amend or repeal retained EU law in the five areas I have set out, thereby according them a level of enhanced protection. That is important because any future Government could easily use secondary legislation contained in a variety of past and future Acts of Parliament to chip away at rights, entitlements, protections and standards that the public enjoy and wish to retain.
In the interests of brevity, let me illustrate the risks posed if we do not pass new clause 58 or a similar new clause, by focusing on employment entitlement, rights and protection. As hon. Members will know, a substantial part of UK employment rights is derived from EU law, and an even larger body is guaranteed by EU law. As such, key workers’ rights enjoy a form of enhanced protection. Those include protections against discrimination owing to sex, pregnancy, race, disability, religion and belief, age, and sexual orientation; equal pay between men and women for work of equal value; health and safety protection for pregnant women, and their rights to maternity leave; a degree of equal treatment, in broad terms, for the growing number of fixed-term, part-time and agency workers; rights to protected terms and conditions, and rights not to be dismissed on the transfer of an undertaking; and almost all the law on working time, including paid annual leave and limits on daily and weekly working time.
Whether it is the working time regulations guaranteeing rights to holiday pay and protections from excessive working hours, which will be preserved via clause 2 of this Bill, or the right to equal pay contained in article 157 of the treaty on the functioning of the European Union, which will presumably be preserved via clause 4, these rights will not enjoy enhanced protection after exit day and will be at risk of amendment from regulations set out in other Acts of Parliament if this new clause or a similar one is not passed.
Now, it is true the Government have promised to ensure that workers’ rights are fully protected and maintained after the UK’s departure from the EU, but in the absence of stronger legal safeguards, there are good reasons to be sceptical about that commitment.
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.”
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 legislation”
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.”
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 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. [Interruption.] 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.
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—
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.”
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.
New clause 55 would also safeguard standards of equalities, environmental and employment protection and consumer standards from amendment by subordinate legislation, precisely because in my experience as an MP, those are the areas that matter to people. I am aware that it has been suggested that some Conservative Members think that there are too many such rights around and that they in some way fetter economic activity. I regret to say that those are probably similar arguments, in some cases—no, I should withdraw that; I was about to say something that might have appeared improper. It is worth bearing in mind, however, that the history of this country since the middle of the 19th century has seen the development of protections for individuals. That started with little boys no longer being killed by being forced to go up chimneys and clean them. All those protections are part of a pattern that has radically contributed to the improvement of the quality of life of citizens in this country.
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,” 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?
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.
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!”—“What a mess!” 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.
We then had a premature and unilateral decision by the Government that having a democratic mandate to leave the European Union—certainly from two of the four partners in this Union—they would also take us out of the single market and the customs union, without putting specific questions on that to the people.
It is now becoming increasingly obvious that drawing that red line far sooner than they needed to has created a lot of the difficult, and in some cases impossible, dilemmas that the Government now have to address. For example, leaving the single market and the customs union makes it impossible to respect all the requirements of the current constitutional relationship between Northern Ireland and the Republic. We simply cannot honour commitments made about where borders will not be placed if the Republic of Ireland is in the customs union and the United Kingdom is not.
Having drawn such a red line, the Government have in effect painted themselves into a corner. They then published a Bill, following a White Paper, but without first publishing it in draft form. For a Bill of this importance, that must be extremely unusual, if not unique.
The Bill is intended to enable a smooth exit from the European Union, but it has already failed. If we speak to any of the 4.5 million citizens on either side of the channel whose livelihoods and whose right to continue to live where they currently live could be affected by leaving the EU, we find that they certainly do not think the process has been smooth and trauma-free. It is 500 days since their future was cast into doubt, and it is still in doubt. Any legislation or action by the Government to try to ease their concerns has been far too little—it has not gone far enough—and has all come far too late. It is morally indefensible that the Government have taken so long to do so little about what they describe as the No. 1 priority in these negotiations.
I want to turn to the objectives of clauses 2 and 3, which we are now debating. I do not have a problem with what they are attempting to achieve. It stands to reason that if we are going to walk away from an international treaty that has helped to shape our legislation for the better for the past 30 or 40 years, we must make sure that the good legislation of those 30 or 40 years is not all lost. I do not think anyone would argue with the principles or intentions of the first few clauses.
One of my concerns about clause 2 is the lack of clarity. Other Members have already spoken about that much more eloquently than I ever could. Although clause 3 appears to be well intentioned, there is a danger that, because it sets a specific cut-off date, it fails to recognise that a lot of the most important and significant European legislation is not issued in a single document on a specific day, but comes out in several stages. EU developments in data protection law are a good example. If we are not very careful, we could find that some bits of the jigsaw are in place and some are not in place on the day we leave the EU. I suspect that having half the legislation on data protection is about as useful as having half a parachute for someone jumping out of an aeroplane.
I ask the Government to give serious consideration to the amendments to clause 3. They should at least give us the opportunity to continue, if need be, to adopt legislation passed by the EU after we have left that is clearly part of a package that simply cannot be subdivided without making life very difficult indeed.
My final comment on the legalistic aspects of the Bill is that, as a non-lawyer, I find it astonishing that the entirely new concept in the structure of our legal system appearing in the Bill does not seem to be have been raised anywhere else. I may be wrong, but I cannot find it mentioned in the White Paper, the Lancaster House speech or any other major speeches that Ministers have made. It was not in the draft Bill because, as I have said, the Government were in such a haste to get out that they did not take the time to publish a draft Bill in the first place. That is indicative of the fact that since the day of the referendum—in fact, I would argue that this has been the case since the day Parliament passed the European Union Referendum Act 2015 and set the date of the referendum—speed has taken precedence over everything else.
The Government have recklessly made the situation even worse by setting a deadline for themselves of March 2019, even though they did not need to set it. Neither did they need to trigger article 50 when they did. Scrutiny of this Bill will therefore not be as detailed as it might have been, and even the Government accept that scrutiny of all the secondary legislation that might or might not come under Henry VIII powers will not be as detailed as they would usually like it to be, because everything will be sacrificed on the altar of speed. All of us accept, including some Government Members—in fact, I hope that most of them accept this—that whatever else happens, a deal has to be agreed and completed before we leave the European Union.
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,” 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.” 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.
I am speaking to amendments on the amendment paper, if the right hon. Gentleman would care to look at them.
I have no great expectation that the Government will accept either Plaid Cymru’s amendment or the SNP’s proposed new clause, which will be decided at a later date, but I want to continue to remind them and their Back Benchers, as well as Opposition Back Benchers, that we do not have a final, irreversible decision on the single market. We might not even have an irreversible decision on the European Union, but we certainly do not yet have an irreversible decision on the single market and membership of the European economic area.
There is a way in which the Government can extricate themselves from the mess that they have created for us; end the torment of 4.5 million people who still do not have an absolute legal guarantee that their children will be allowed to finish at the school at which they have already started; ease the daily growing concerns of businesses the length and breadth of these islands that do not know whether they will be allowed to import raw materials or export finished goods; and ease the concerns of our public services that their essential workers, including care workers, nurses and doctors, may not be able to continue to move here to serve our people. It is all right for the bankers, of course, because there will be an exception for them. They will have free movement, but nurses, doctors and care assistants are apparently not important enough.
Even if, for political reasons, the Government cannot ask their Back Benchers to support amendments either today or during later Committee sittings, I ask them to think very carefully about what I am saying. There has not been a referendum to leave the single market, so the situation can be changed by the will of this Parliament and the support of the Government. They do not have to go back on their promise to respect the result of the referendum to leave the European Union, but they can reverse the headlong charge towards the cliff edge and make sure that the Bill actually delivers what it is supposed to deliver, and that means we have a soft landing instead of falling off the cliff edge in March 2019.
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?
It was appropriate that we heard a typically helpful and important contribution from my right hon. and learned Friend, whose constituency bears the name of the great Tory Prime Minister who introduced many of the important social reforms of the 19th century. They helped to pave the way for both parties to bring forward important social reforms to protect, enhance and improve the rights of workers and others in industry and employment.
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.
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).”
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.
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 YouTube videos during the campaign—[Interruption.] I look forward to starring in one. We must not forget, however, that the important sunset provisions in clause 7 limit the use of such powers to two years after 29 March 2019. Clause 9 is now sunsetted to a very restrictive interpretation with regard to the duration of its powers. I hope that that, together with the important policy statements we have made, and are making again today, will give the hon. Gentleman the comfort he is looking for. [Interruption.] He is chuntering away. With respect, perhaps he could hear me out. I am trying to give him the comfort he rightly seeks for his constituents and to reassure him that his fears are unjustified.
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 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—
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—
I am sorry, but I need to make progress. I want to deal with the proposals tabled by hon. Members, including the Opposition spokesman.
I will say a little about how we will deal with converted law, which was raised by my right hon. and learned Friend the Member for Beaconsfield. Converted law will become domestic legislation. It will not automatically have the status of either primary or secondary legislation. Indeed, as has already been referenced, paragraph 19 of schedule 8 sets this out:
“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”.
We all know—including the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), the shadow Secretary of State—about the consequences in terms of incompatibility, the power of the courts and what the House can do to rectify legislation. I think that is an enhancement. It is a welcome initiative and I know the right hon. and learned Gentleman shares my view about that.
Where there are existing pre-exit powers to make subordinate legislation, which is capable of amending retained direct EU legislation such as converted regulations, the converted legislation is to be treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers. In other words, we might bring something down to this place and transpose it. We used to use the term “gold plating”, but it has somewhat gone out of fashion now, and I think the Government improved their processes over the years. However, there have been powers to vary, and, in effect, that will be treated as secondary legislation—no change, really, because the House already had those powers with regard to scrutiny.
It follows, then, that where there are not pre-exit powers to make subordinate legislation, we will look case by case at the converted law and determine how it is to be treated. This is the point that has been made by my right hon. and learned Friend the Member for Beaconsfield and others: how are we to determine what is what? As I have said, I am keen to ensure that all concerns are properly listened to, and that when we come to further amendments on further days, the Government give full consideration to how to create that mechanism and in what form the House, and indeed the other place, would like it to be administered.
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.
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—
May I make progress? I would be grateful, as I need to make progress on the amendments. I think I have been more than generous in giving way. I will move on to try to ensure that I deal with all the points that have been raised.
May I deal first with health and safety legislation? There has been a lot of proper debate about that. The way existing powers are used—the way the UK meets its obligations to implement EU law—is most typically through regulations that are made under the 1972 Act, but regulations are also made under a range of other Acts for these purposes, sometimes in conjunction with the 1972 Act powers and sometimes not. For example, some health and safety regulations are made using the Health and Safety at Work etc. Act 1974 and the 1972 Act where the 1974 Act alone cannot provide the vires, or powers, for those regulations.
One example is the Control of Major Accident Hazards Regulations 2015. They are made for the purposes of health and safety and of environmental protection, the latter being outside the vires of the 1974 Act. Those regulations prevent and mitigate the effects of major accidents involving dangerous substances, which can cause serious damage and harm to the public and to the environment. The parts of the regulations made under the 1974 Act can continue to be updated after exit under existing powers conferred by that legislation.
As I have set out, clause 2 rightly takes a maximalist approach to preserving direct legislation. It sets it out that any domestic legislation that implements EU obligations or is otherwise related to the EU or the EEA will continue to have effect after our exit. The effect is that those regulations will therefore become retained EU law within the meaning given in the Bill. So it is absolutely right that after we have left the European Union, domestic powers granted by Parliament in other Acts can operate on what will become retained EU law, and as such will be our domestic law. This is so that appropriate changes can be made in future, in line with any domestic policy, where they are within the scope of those powers and the will of this place.
In contrast, the amendments would fetter powers across the statute book that Parliament has already delegated. Relying only on powers set out in this Bill to amend retained EU law would be insufficient and would defeat the purpose of what Parliament has previously set up in the 1974 Act, for example, and other Acts. As I have set out, these powers are in many cases very important and help to deliver functioning regimes. Each of them also contains its own limitations. Those limitations were agreed by Parliament when it agreed to create the powers in question.
I shall turn specifically to new clause 25 and new clause 55. I am grateful to those who have spoken to them and clarified their purpose, but I must again stress that we are seeking to achieve continuity and stability in the law so that we can have a working statute book after we leave. The sheer volume of law that is being converted in such a short space of time restricts what it is possible to do via primary legislation. The corrections that will need to be made to the statute book will also depend on the negotiations, so it simply will not be possible in some cases to list the corrections before the negotiations have concluded.
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?
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 am committed to trying to achieve the best solution, whether it is in the Bill or in an amendment to Standing Orders. I will not presume to tie the hands of this place. I hope that my right hon. and learned Friend can take that as a clear assurance that I will do whatever I can to get this right.
The first and most important point to be made about new clause 15, tabled by the hon. Member for Nottingham East (Mr Leslie)—it has, I think, already been made by several other Members—is that we have strong rights and protections here, domestically, which are not contingent on our future membership of the EU. We have a proud record, and in many areas our standards far exceed the minimum standards required by EU law—for instance, entitlement to annual leave and maternity allowances. When we leave the EU, it will be for this Parliament and, indeed, the devolved legislatures to determine the law and the rights that apply here in the United Kingdom.
I must say to the hon. Member for Nottingham East, with respect, that in my view the new clause would impose an onerous and unnecessary duty on the Government. There will be nothing to stop future Governments of whatever hue, or future Parliaments when exercising their sovereignty, from considering any legislation that the EU or the European Economic Area may make. They need not be obliged to do that; it will be a matter that they can take into consideration. A requirement to report to Parliament each and every time the EU amended its rules would be excessively onerous, given the number of reports that might be made and considered.
Moreover, we do not want to give the inappropriate impression that the path followed by our European partners will always be the path that we as a UK Parliament should follow. While I am entirely supportive of many measures that ensure that we work, converge and keep pace with our European partners, there will of course be plenty of opportunities for us to forge our own path. That, after all, is what the vote was all about.
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?
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?
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? [Interruption.] 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.
Similarly, amendment 64 would remove from the Bill provisions in schedule 8 that make amendments to the European Economic Area Act 1993. Such amendments are necessary to reflect the fact that the EEA agreement will no longer be relevant when we leave the EU. Leaving the 1993 Act unamended would not change that, but it would result in more uncertainty.
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.
I will not give way any further.
It is our policy that we will not be a member of the EEA or the single market after we leave the EU, so introducing an obligation to produce a report on membership of the EEA, as new clauses 9 and 23 seek to do, is simply unnecessary.
I will now try to deal fairly with the Scottish National party amendments 200 and 201, which the hon. Member for Glenrothes (Peter Grant) spoke to. While we do not accept that the amendments are necessary, I welcome the chance to set out clearly the meaning of clause 2. Amendments 200 and 201 seek to provide clarity on precisely what is meant by “passed” in the context of the clause. Some have questioned the effect of clause 2 in relation to an Act that may have been passed by the Scottish Parliament, but which has not yet received Royal Assent when the clause is commenced.
We do not believe that there is an ambiguity. Clause 2(2) states that “EU-derived domestic legislation” is an enactment. As enactments can only mean something that has received Royal Assent, an Act of Scottish Parliament that has only been passed cannot fall within this definition, and it would therefore not be categorised as EU-derived domestic legislation for the purposes of the Bill. The reference to “passed” in clause 2 is therefore a reference to the purpose for which the enactment was passed, not the fact of whether it was passed. I hope I have been able to shed light on that area for the hon. Gentleman, and I invite him to withdraw the amendment.
Turning now to Plaid Cymru’s amendment 87, which is in the name of the hon. Member for Arfon, we do not accept the premise that lies behind the change. In trying to circumvent the provisions of clause 11, the amendment pays no heed to the common approaches that are established by EU law or to the crucial consideration that we—the UK Government and the devolved Administrations—must give to where they may or may not be needed in future. What is more, it undermines our aim to provide people with maximum certainty over the laws that will apply on exit day. The amendment would also be practically unable to achieve its underlying aim. The enactments that it takes out of retained EU law would also be taken outside the scope of the powers that this Bill confers on the devolved Administrations to allow them to prepare them for exit day. It would hamper their ability to address the deficiencies that will arise, and it would leave it likely that the laws would remain broken on the day of exit.
The process of making the statute book work for exit day is a joint endeavour between the different Governments and legislatures of the whole United Kingdom. This is an important project that entails a significant workload before exit day, which is why we are actively engaging with the devolved Administrations to build up a shared understanding of where corrections to the statute book would be needed. On that basis, I hope that the amendment will be withdrawn.
I hope I have dealt with the amendment in the name of my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chair of the Select Committee on Justice.
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.
Order. We have a lot of speakers and, as Members are well aware, there is no knife today. I will not be setting a time limit, so in order to get to the second debate I suggest that Members use up to eight minutes, including interventions.
I rise to speak to new clauses 22 and 23 in my name. I say at the outset that I will not take interventions because I know other Members wish to speak. I put on record my thanks to George Peretz QC for his help in drafting the new clauses.
New clause 22 would prevent Ministers from using provisions in this Bill as the basis for withdrawing the UK from the European economic area, whether under article 127 of the European economic area agreement or otherwise. It would also ensure that Ministers cannot use the regulation-making powers they seek to give themselves in other parts of the Bill to circumvent that carve-out. It would mean, in effect, that if Ministers wanted to take us out of the EEA, which is the grouping of EU and non-EU countries that together make up the single market, they would need to introduce a separate Bill to authorise that.
Why is this necessary? The UK is currently a member of both the EU and the EEA. Although the bodies overlap, they have different member countries, they are governed by different treaties and they have different guiding principles at their heart. There is one process for leaving the EU, as governed by article 50 of the Lisbon treaty, and another for leaving the EEA—article 127 of the EEA agreement requires a member to give 12 months’ written notice. Parliament should determine whether we trigger article 127 to notify our withdrawal from the EEA, and not the Prime Minister sat behind her desk in No. 10. MPs in this House, the public’s elected representatives, should decide, and there should be a specific, explicit vote that is binding on Ministers.
The Government’s contention that it is not necessary to trigger article 127, and that we do not need formally to leave the EEA as we are a member simply by virtue of our EU membership, does not stand up to scrutiny. All EU states are listed as contracting parties to the agreement, in addition to the EU itself and the three non-EU EEA states.
The Government have changed their argument on article 127 repeatedly over the past year. One minute they argue that our departure would be automatic, and the next that our membership would be unworkable. They assert legal opinion as irrefutable fact. They fail to acknowledge that a basic principle of international law is that a treaty relationship with another state cannot be changed simply by changing a different treaty to which that state is not party and assuming a knock-on effect. And the Government fail to acknowledge that, at a time when we would supposedly be wanting to sign international trade treaties with other countries in our own right, we might be in breach of the treaty that underpins the EEA. This all sounds very legalistic, but the issue has critical importance beyond the legal technicalities.
At its heart, new clause 22 is about democracy and our country’s future. In last year’s referendum there was only one question on the ballot paper:
“Should the United Kingdom remain a member of the European Union or leave the European Union?”
The words “European economic area” or “single market” did not feature. Had Parliament wanted people to take a view on the EEA, we could have legislated for that in 2015, but we did not. Some people say, “Everyone knew it meant we’d be leaving the single market,” but that is simply an interpretation of the result. Some people may have voted to leave it, but others did not. The Government are now rewriting history: they claim that coming out of the single market and customs union is an automatic consequence of the leave vote, not their political choice. If just one tenth of those who voted leave believed that we would stay in the single market, there never was a mandate for the sort of Brexit that the Government are now pursuing.
We spend hours in this place debating all the twists and turns of negotiations, parliamentary processes relating to withdrawal and so on, but we never seem to get to the crux of the issue. That is what new clause 22 would do: give us a parliamentary lever to shape Brexit. Parliament must determine whether we leave the single market. We must decide whether Ministers should notify other countries of our intention to leave the EEA. The process must not be reduced to some sort of back-door authorisation that can be cobbled together by adding up various bits of the Bill, but that is precisely what the Government are trying to do.
I believe that the repeal of the European Economic Area Act 1993 contained in part 2 of schedule 8 will be used by Ministers, alongside the powers they want to give themselves in clause 8, to claim parliamentary authorisation for setting the ball rolling on our departure from the EEA. They will claim that the by-product of Parliament’s voting, as part of the Bill, to remove domestic UK rights for the citizens and businesses of EEA countries such as Norway, is a parliamentary authorisation to notify other EU and EEA countries of our intention to leave.
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?
I did say that I was not going to give way to anyone, so I am not going to do it again.
New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say. If we do not change the Bill accordingly, we will have sold the pass.
Mr Hoyle, if you think the democratic arguments for the new clause are strong, I can tell you that the economic arguments are even stronger. The Government seem finally to have listened to business and have accepted the need for some form of interim arrangement to fill the hiatus that will exist between the conclusion of the article 50 negotiations and the signing of any new UK-EU trade deal. They claim that they want trade to continue on the same practical terms as today, for a time-limited period, even though they envisage that we will have legally come out of the European Union. That is basically an extension of EU membership, but without political representation: no British Members of the European Parliament in May 2019 and no representation at the Council of Ministers—no influence. The Government claim that that will not be the same as our remaining in the single market and customs union, although to all intents and purposes, it will be.
Banks, car manufacturers, IT firms, chemical producers and pharmaceutical companies all need clarity about their ability to sell into the European market and the continued viability of pan-European supply chains. The Government are right to want to give them certainty for a two-year period post the conclusion of the article 50 negotiations, but those companies need more.
If we are not going to lose jobs and investment, businesses need to know what tariffs will and will not apply on exports, what checks will be conducted on goods at the border, and what overall regulatory regime will apply to them in the future—not just in 2020, but in 2022, 2025 and beyond. A fudge might cut it for a few years, but it will not last forever. As a country, we will face a fundamental choice: do we align ourselves with European standards, or do we deregulate and go for weaker American or Chinese ones? There is not some fantasy mid-Atlantic option out there that the Government can conjure up, which is why continued membership of the European economic area could be so important.
In the EEA, we would have some influence—not as much as we have today, but more than we would have in a free-trade agreement with the EU. It is the simplest and most sure-fire option if we really do want to maintain the deep and special relationship that the Prime Minister constantly talks about. It is an obvious way to stay close to the EU while not being in it. It is the way we retain membership of the single market. It is potentially a way to remove ourselves from the jurisdiction of the European Court of Justice, but maintain our ability to trade easily with our closest neighbours.
However, such an option is a compromise—a compromise between the complicated, disruptive, risky, delusional Brexit that the Government seem intent on pursuing and the outcome that a majority of my constituents want: to stay in the EU. It is a compromise that, in my view, is sub-optimal to our present arrangements, but that would be better than losing all influence as the minor party in a free-trade agreement with our major export partner.
Yes, for some the option would be seen as a compromise on sovereignty, immigration and what we contribute as a country to aid the economic development of poorer parts of Europe, but it is better than the economic suicide pact to which this Government seem to be signing us up. Just because we may end up sacrificing political influence if we leave the EU, that does not mean that we should do irreparable damage to our economy at the same time.
As people who are elected to make decisions on behalf of our country, we have a responsibility to consider the option of staying in the European economic area thoroughly and transparently. I am fully aware that keeping us signed up to the EEA agreement is not in and of itself the whole answer, which is why I have also tabled new clause 23 to require Government to lay a report before Parliament within six months of this Act passing on the merits of joining EFTA.
None of this is easy, but the Government are currently tying themselves in knots. As the country’s elected representatives, we have a responsibility to hold on to the keys of the car to prevent this Government from driving us off a cliff. If we let this Bill pass unaided, we will be legislating ourselves out of the biggest question facing the country. That is why new clause 22 is so important and why I encourage Members to support it.
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?
It is a pleasure to serve under your chairmanship, Mr Hoyle.
This is another important debate on some key issues related to retained EU law. With no disrespect to my constituency next-door neighbour, the hon. Member for Lewisham East (Heidi Alexander), who made some powerful comments, I will concentrate specifically on those matters of retained law. As one might say in court sometimes, I adopt the arguments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I was about to say that I had nothing further to add, but I will not go quite as far as that. None the less, I do entirely agree with his approach to this part of the Bill and to what we should seek to achieve in relation to retained law.
May I add a couple of other broader observations? I very much welcome the spirit of the remarks made by the Solicitor General and the other Ministers currently on the Treasury Bench. I am grateful for their constructive approach. It is a reminder that Conservative Members have far more in common than that which ever might cause us to disagree about matters on this Bill. It is also a timely reminder that our commitment to protecting social standards and protections is undiminished.
As has been rightly observed, the Conservative party has historically always been a party of social protection and social reform, from the great Christian philanthropists such as Shaftesbury through to Peel—arguably one of the greatest of all Conservative Prime Ministers—and Disraeli and up to the present day. I include a short plug for a previous Member of Parliament for a good part of the Bromley and Chislehurst constituency, the late Lord Stockton, who was, of course, the Member of Parliament for Bromley. Many of us are proud to be in that one nation progressive tradition and want to ensure that we take that forward into the future.
I now turn to amendment 356, which is in my name and is supported by my hon. Friend the Member for Wimbledon. I am also grateful to the hon. Member for Ilford North (Wes Streeting) for adding his name to it. The amendment concerns the UK’s ability to maintain regulatory alignment in the immediate period after the UK leaves the EU, where there is EU-derived legislation that is not fully in effect on exit day. The Solicitor General was kind enough to refer to that topic when I intervened on him. I accept his intentions, but I would like to develop my view on these issues a little further.
As we already know, clause 3 will impose a strict cut-off on the law that is to be retained in that it must not only be on the books—so to speak—but must also be fully applicable and effective immediately before exit day. So far, so good; it is obviously right that Parliament should not automatically apply EU laws introduced after Brexit. It should decide whether we want to apply them, as a matter of our own sovereign judgment. There will be cases, however, where legislation is sufficiently far down the line as we leave the EU that a more flexible approach is justified. It is that limited, but important, area of cases that I will deal with.
There may be legislation that we have no problem with as a matter of policy and that businesses or other affected parties would wish to have—perhaps we were involved in its preparation when we were still a member of the EU. The European Scrutiny Committee and other parts of the House may even have had the opportunity to peruse the documents, and business and other affected parties might already be making preparations to implement and comply with that legislation. How do we deal with that? At the moment, it looks as though we would need primary legislation in those cases. That would be cumbersome for all the reasons that the Solicitor General recognised in his exchanges with the right hon. Member for Birkenhead (Frank Field).
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?
I rather think that what I am proposing in my amendment is the use of the affirmative procedure. I never heard my right hon. Friend say that that was not part of the proper democratic process when he was a Minister and used it many years ago; nor have I heard him say that on other occasions when it has been used. It is a question of what is proportionate. I entirely accept that there has to be scrutiny and a democratic process. But, for the very reasons accepted in the discussion between the Solicitor General and the right hon. Member for Birkenhead—the volume of matters that we would have to deal with, even with the sensible triage arrangements that we have to put in place—I am not sure that we need to go down the time-consuming route of full legislation going through both Houses. I am trying to propose a compromise that would get us through a limited number of quite technical cases.
I will use some examples predominantly from the financial sphere, but the amendment would also apply should we need to maintain regulatory equivalency in things such as data protection, which is important for criminal justice and legal justice co-operation. There may be no such cases when we leave, but they are always possible. That is what we need to deal with, and the principle holds generally.
We may also need to deal with the difficulties that might arise in the context of EU legislation that is only partly implemented on exit day, or legislation that is enforced on exit day but whose effective operation depends on secondary measures that will be passed after exit day, which is not unknown even in our own domestic arrangements. In that situation, it would seem sensible to have the option to domesticate that EU legislation as it comes into force in the EU, so that it is enforced with us at the same time. We could do that through a vote on an affirmative resolution statutory instrument, rather than by having to pass new primary legislation each time. That is a practicality matter, and I suggest it is important.
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.
I need to make some progress, so I hope the hon. Lady will forgive me. I have not much more to say.
Let me explain how this procedure will work. The proposed use of the affirmative procedure takes account of the fact that this amendment addresses only EU legislation that is in train, but not wholly in effect. These pieces of legislation have been subject to policy input and scrutiny processes, so they are very limited in number.
Support for this approach comes from two practitioner-based groups in the City: the International Regulatory Strategy Group, which I referred to in debate yesterday, and the Financial Markets Law Committee. The strategy group includes most of the key players in the London financial world. The law committee is an independent body drawn from leading practitioners in City firms and institutions and from members of the judiciary—in fact, it is chaired by Lord Thomas of Cwmgiedd, who recently retired as Lord Chief Justice. Their imprimatur is likely to indicate that this modest proposal has a pretty strong parentage in terms of its expertise and application.
The two bodies identify potential sources of legal uncertainty affecting the wholesale financial markets. Let me give two examples. First, there is the situation regarding the second payment services directive. The directive will apply from next year and will be domesticated, but important regulatory technical standards that will underpin the operation of the directive are not expected to be finalised by the European Banking Authority until after Brexit. At the moment, the Bill will not allow us to adopt those standards into UK law. The amendment would give us a streamlined means to deal with that.
Some of the provisions of the prospectus regulation came into force over the summer, and some important elements are due to take effect in the months after Brexit. Do we have to go through full primary legislation to incorporate that, or do we deal with it through a streamlined procedure? The City institutions and practitioners think it would be much more sensible to have the procedure I propose, so that they have certainty that they will not have delays in the primary legislative process. They can then have the regulation in place, and they are already prepared for it.
That is the nub of the amendment. I am grateful, again, to the Remembrancer’s Office of the City of London for its assistance with the drafting. I am sure the Minister will want to find the means to achieve what is set out in the amendment. I hope that he will be able to respond and find a means of taking this forward.
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.
The Bill as it stands gives the Government of the day the power to water down or remove EU-derived environmental standards by statutory instrument. As ClientEarth has said, it
“would give Ministers extensive discretion to alter, amend, remove and meddle with our essential environmental safeguards without proper public scrutiny”.
In their White Paper, the Government state that
“Parliament…will be able to decide which elements of that law to keep, amend or repeal”.
“Parliament” should mean a vote by the whole Parliament, and that is what these amendments seek to achieve.
Crucial environmental protections are at stake, not just trivial, technical rules that require tweaking every now and again. The Minister was asked whether it was possible to triage and somehow separate out the technical changes from the broader, most important protections, but I was not reassured by his answer. Perhaps he can come back to us on that. These laws protect the air that we breathe, the seas that we swim in, the water we drink, our biodiversity, our ecosystems, and the stunning natural environment we so enjoy. They are laws that would have been made by primary legislation in the UK had it not been for our EU membership, and so they should be treated in that way now.
The Constitution Committee has warned of some laws
“being permanently vulnerable to being reshaped through the use of delegated powers.”
We cannot be in a position in which environmental laws that have helped to do such things as clean up dirty beaches and set standards for our air quality, often against resistance from the Government—they have had to be taken to court before the policies have been enforced—could be watered down, weakened or even scrapped by Ministers so easily.
It is true that the Government, in response to deeply held concerns that our environment will be less protected post Brexit, have said on many occasions that they are committed to maintaining or enhancing existing environmental protection. Only recently, the Environment Secretary said that
“we must not only maintain but enhance environmental standards as we leave the EU.”
That means making sure that we secure the environmental gains we have made while in the EU, even as we use our new independence to aim even higher. I am sure that the Environment Secretary spoke in good faith, but new clause 25 would mean that we do not just have to take the Government’s word for it. It does not assume that the current Environment Secretary will be in place for ever or that Secretaries of State in future Governments will accord the environment the same importance that he does. After all, his immediate predecessor in the post, who is now Leader of the House, promised a bonfire of EU red tape after Brexit. We could have a whole debate on what red tape is and what important environmental protections are, but I am in no doubt that she meant the latter as well as the former.
We cannot trust Ministers with unmitigated power over regulations on matters ranging from workers’ rights to vital environmental protections when other members of the Government have a track record of weakening protections and opposing ambitious policies at EU level. For example, in 2013, when the EU looked at a moratorium on the use of neonicotinoids, which were deemed to be harmful to bees, the UK was one of the countries that tried to oppose that moratorium and spoke out against the use of the precautionary principle. We will perhaps have a debate later about the importance of the precautionary principle. The Government have also been opposing waste targets in the circular economy package. Although Brexiteers like to say that we will be freed up post Brexit because the EU has been holding us back from ambitious action, all too often the UK has been the brake on ambitious progress on environmental matters in the EU.
The right hon. and learned Member for Beaconsfield (Mr Grieve) indicated that he will not press new clause 55, which is very similar to new clause 25, to a vote. I am afraid that I cannot share his confidence that the Government will act on his concerns, so I hope that, given the opportunity, we can seek the view of the Committee on new clause 25.
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?”—[Official Report, 30 October 1990; Vol. 178, c. 873.]
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?
I am sure that the hon. Gentleman, like me and all Members, believes in Britain’s future prospects outside the European Union, and in how we will work together—across all political parties; across the devolved Administrations; across the country—not only to get the best deal for Britain, but to safeguard and secure key services and key sectors across the economy.
New clause 51, which was tabled by the right hon. Member for Birkenhead (Frank Field), who is not in the Chamber at the moment, raises the prospect of reviewing EU legislation that is still applicable in the UK six months after our departure and at least once a year thereafter, together with proposals for the re-enactment, replacement or repeal of such provisions. I actually have some sympathy with the objectives of the new clause, but I would expect those very actions, and particularly such scrutiny, to be undertaken by the Government.
We should welcome the fact that Members will be able to come forward with their own ideas about how we embark on our future outside the EU. We will be able to modernise our laws more quickly and make them more relevant more efficiently, because we will have control over them. That is the fundamental point. In that way, we will have modern regulations that will maintain and protect rights, as the Prime Minister has guaranteed and as the Solicitor General mentioned.
We can look at repealing many of the laws that are simply not functional and that add costs, and we can also go further than the EU when it is in our national interest to do exactly that. This country has a strong record on some of the areas that have been mentioned, such as legislation on employment and social rights—my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) spoke about that—as well as environmental and other laws we passed before we joined the European Union. We will continue to lead the way and, indeed, pave the way when it comes to that strong record.
Importantly, clauses 2 and 3 will fulfil the wish of the British people to be free from the European Union and many of its controls. Over the past 45 years, the European Communities Act 1972 has been the mechanism by which the sovereignty of this Parliament has been eroded, with more areas of law being taken over by the EU. The Bill puts all those EU laws, regulations and other measures under our control.
The clauses are essential to deliver the commitment that most Members have made since the referendum, including at the election. We are a proud country with a rich democratic history, and this is one of the greatest Parliaments in the world. The Bill strikes at the heart of the issue of trust in Parliament and politics. Do we trust the British people, who voted to leave the EU and to move on, or do we want to go against their wishes? These clauses will go far enough to deliver the outcome of the referendum and, importantly, our own governance and leadership for the future, which is exactly the right way forward.
It is a pleasure to follow the right hon. Member for Witham (Priti Patel), who has had a busy few weeks. Brexit must not mean isolationism for the United Kingdom. The right hon. and learned Member for Beaconsfield (Mr Grieve) spoke of a global Britain and globalisation, and we have to recognise that we live in an interconnected world. The right hon. Lady did her duty and played her part at the Department for International Development, helping to save lives and foster that interconnected world. In some ways, she helped Britain and DFID play their part in pooling sovereignty with other countries, working together to make sure that we can deliver positive outcomes internationally.
It is partly in that spirit that I tabled new clause 15, which would make sure that, after Brexit, we stay informed about developments in the European Union and the European economic area. If they depart from our corpus of law and regulations, it is important that we know and are informed about it, and that we keep pace with and are aware of what they are doing. It would be to the advantage of the House of Commons and Parliament in general if we make sure that we know about any EU reforms and any ideas it develops, because ultimately there is a crucial question about our economy and its linkages with our nearest neighbours across the European Union. We cannot just pretend that we are isolated and cut off from them and that we have nothing to do with their economic progress. Our fate and theirs are integrally linked.
It is important that we should have the option of keeping pace with the EU and the EEA, for a number of reasons. We have an integrated economy and we share the EU’s warehouse inventory with regard to many of the goods that are produced and manufactured in this country. The relationship goes beyond hard economics; we have cultural ties and share other interests as well.
If there is a hard-headed economic case, it must lie in the notion of regulatory equivalence. Keeping pace with the way in which Europe develops is ultimately also in the UK’s own economic interests. If we are going to retain trading rights in full with our counterparts across the continent, I believe that the UK’s policy should be to ensure that there is regulatory alignment wherever possible.
It is often said that there are three broad regulatory paradigms in world trade today. The European paradigm effectively follows the precautionary principle when it comes to regulation. The American approach is a much more hard-headed cost-benefit analysis, which of course can often result in different regulations, and the growing regulatory approach of the Chinese is one that we might characterise as expansionist in its own particular way. I personally believe that we need to make a choice. As hon. Members, including my right hon. Friend the Member for Wolverhampton South East (Mr McFadden), have often said, this is not just a matter of negotiation; it is also about the UK having to make a choice of where we are in the world. My view is that our interests are best served by keeping pace and alignment with the precautionary principle approach to regulatory change that exists in Europe. New clause 15 would allow Parliament to stay informed about what is happening on mutual recognition agreements and the accreditation of professional services. This is a dynamic economic area and we have to recognise that we are not entirely on our own.
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?
I would want us to shape those regulations, because we are going to be affected by them. If our near neighbours—500 million residents—operate under one regulatory regime, many of our products and services will have to comply with it. It is far better that we are able to take part in the discussion and shape those regulations. In accordance with the Bill, we may leave the EU—if that does come to pass—but if we were part of the European economic area, we may still have a say on some regulatory changes. I understand the point my hon. Friend is making, but my amendment would not tie the UK to every regulatory change that takes place within the European Union; it would simply make sure that Parliament is informed when the European Union branches off and goes in a different direction. We need to know that information so that we can make a choice as laws change. If the EU takes a different route, we may want to consider doing so ourselves. We may not, but we may. That is simply the point I make in new clause 15.
New clause 55, in the name of the right hon. and learned Member for Beaconsfield, and new clause 25, in the name of my hon. Friend the Member for Bristol East (Kerry McCarthy), address the issue of retained EU laws. Over 20,000 laws and 12,000 regulations will need to be transposed in some way, shape or form. That is a massive process of change and it is still not clear whether we will convert European laws into primary legislation, secondary legislation or something else entirely. It is sensible to have a schedule that lists retained EU laws and I think the suggestions in the new clauses should be accepted.
It may be that not everything can be changed. If there are modifications via primary legislation, we might want the enhanced scrutiny procedure. When the Minister was pressed on this issue, however, he did not in any way give a proper concession to the points made by Members on both sides of the House. We could face circumstances where the EU laws to be modified affect equal pay, the treatment of workers with disabilities, or race and age discrimination. They were not part of primary or secondary UK legislation, but EU laws that we are going to co-opt. If there is to be a change to the set of rules under which we operate, we need much more clarity on whether it will involve this House of Commons doing it in an affirmative way through an enhanced procedure, or, preferably, through primary legislation.
The Minister needs to do more than just promise to look at this matter on Report, because we may not get a Report stage. We have a Committee of the whole House stage, so unless the Bill is amended there will not be a Report stage. The Minister needs to acknowledge that if we do not have a Report stage, any such assurances are not really worth that much.
I look forward to an amendment with an extra comma or full stop to facilitate a Report stage. It is very important that we see that.
My new clause 9 and amendment 64 relate to the EEA. As my hon. Friend the Member for Lewisham East (Heidi Alexander) said, the House should make a specific decision about whether to leave the EAA, given that that was not on the ballot paper. It is effectively the single market club, and as a member we have rights and responsibilities to one another, and not just around the freedom of movement of goods and services, people and capital. On non-tariff issues, too, the EEA ensures barrier-free relationships between the UK and the rest of the EU—on competition policy, state aid issues, consumer protection, environmental policies, research and technological development, education and training, tourism and culture and enterprise. All those issues are covered in the EEA agreement. For the Minister to say, “Oh well, it is implied that we are leaving the EEA, so it is not for the House to make a specific decision”, just will not do.
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.
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.
Further, I understood my hon. and learned Friend the Solicitor General to have said that this sifting process will enable us to stratify between those changes that are minor and technical in character, which I suspect will be around 99% of the many hundreds of changes that are required; those that are material but not fundamental, which might be susceptible, for example, to affirmative resolution statutory instruments as a means of alteration, or indeed of addressing deficiencies, because I take the valid point made by my hon. and learned Friend that, in some cases, what is concerning to parliamentary draftsmen, Ministers and the Treasury Solicitor and so on is the ability to fill in deficiencies should they arise; and those in a third category, which are fundamental, some of which have been the subject of the more serious observations made by Opposition Members and by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which have to do, for example, with fundamental rights in employment, the environment, health and safety or whatever, where clearly it is part of the point of leaving the EU that the House and the other place should have the ability to make changes that are not now feasible, but where those changes should, equally clearly, go through the full process of primary legislation.
If that is what my hon. and learned Friend was saying, I have to say that I think it is a good way to resolve a series of issues, most of which arise in relation to clauses 3 and 4, but which will also arise in relation to other—
Sorry, clauses 2 and 3. I do apologise. My right hon. Friend accurately corrects me, and I hope that Hansard notes that correction.
If that is therefore what my hon. and learned Friend said, I have nothing further to add to it. However, I want to point up one connection with the useful discussion we had yesterday about clause 6. The more I have thought about this over the past few weeks, the clearer it has become to me that the ultimate resolution to the problem of the unrestrained abilities of the Supreme Court under clause 6(4)(a) is to make it clearer in the Bill that the method by which any change in the snapshot legislation that my hon. Friend the Minister of State, Ministry of Justice, was talking about should be made not by the Supreme Court, but by Parliament. The point is that, so far as there is fundamental change, and in particular so far as there is fundamental change in the interpretation of the plain words of directives, regulations and treaties, it should be made by primary legislation.
That puts primary legislation in the right place, and hence puts the Supreme Court in the right place, because the Supreme Court is there to interpret the common law, which this is not, and to interpret statute, which this could and should be, and it can certainly also interpret European law using European principles except to the extent that, through statute, this Parliament has changed those things.
That would be a perfectly recognisable pattern. As I mentioned yesterday, it is not my ideal pattern, as I would like to unwind in the Bill a good deal of the expansive interpretations of the European Court of Justice that have gone before exit day, but I recognise that the Government might not want to do that. It does not worry me if they do not, because this Parliament, post-Brexit, will have the ability to do it, which is, from my point of view, even speaking as someone who on balance was a remainer, the big advantage of exit. We will be able to make those decisions as a Parliament through the proper process of primary legislation.
By coming forward with the package that I think my hon. and learned Friend the Solicitor General offered the Committee a little while ago in this debate, he will also point the way to at least a great part of the solution to the problems of clause 6. While we are at it, just as a bonus, we have not yet debated clause 5—assuming I have my numbers right—but we will do so anon. When we do, we will hit exactly the same set of issues in a slightly modified form. While we are at it, we will hit this again in clause 7, in another way. The same package that the Solicitor General has suggested will handle all the problems arising from clauses 5 and 7, and point the way to handling the problems with clause 6, once we have got rid of the clause 6(4)(a) error.
We have a pattern here that can make the Bill work in its own terms. It can provide the flexibility that the Government need in order to correct deficiencies, to transpose or adjust things when references are technical or incorrect, to bring to the House important matters that need adjustment but are not fundamental, and to give this Parliament the power it needs to change the law fundamentally and to make that something that Parliament does, rather than the Supreme Court. If we can get to that point, we will have a Bill that is perfectly good in its own terms and that will serve the purposes that the Government intend for it, and I shall rest happy in the knowledge that I have in a small way been able to contribute to a series of debates that will have provided legislation of which we can be proud.
I want to make a few points about new clause 22, which my hon. Friend the Member for Lewisham East (Heidi Alexander) spoke to a little while ago. Language can obscure things as well as shed light on them, and that is true of much of our Brexit debate. For example, we were told that this was all about taking back control but, as we have seen many times since the referendum, the Government have stoutly resisted giving control to Parliament, resisted publishing a White Paper, and resisted allowing us a meaningful vote. They have finally caved in on having legislation, but they are still resisting allowing us a meaningful say on a real choice, rather than a choice between whatever is negotiated and no deal and WTO rules. We were told that Brexit would save huge amounts of money, yet one of the critical issues in the talks is how to settle a multi-billion pound divorce bill that was mentioned by no one during the referendum campaign. So language can obscure as well as shed light.
Perhaps this is nowhere more true than in all this talk about “the negotiations”. Unsurprisingly, the public place great faith in anything called “negotiations”. If I were buying a house from someone—I hesitate to tread here after yesterday’s exchanges—who was asking a certain selling price and I offered a certain purchase price, the negotiation would involve us meeting somewhere in the middle. There might be parts of the Brexit talks that involve negotiation in that sense of the word.
I serve on the Brexit Select Committee, but I should add that I do not seek to speak on its behalf here today: this is my interpretation of the situation. Last week, the Committee spent a couple of days in Brussels and Paris talking to some of the people involved in the so-called negotiations. There may be negotiation about parts of this process, particularly in phase 1, but the point that I want to make—which refers to new clause 22 and the European Economic Area—is that our future relationship is less about negotiation than about a fundamental choice. What is the relationship that we want to have with the European Union? Where do we want to be in relation to its system, which is a market with rules? The people that we talked to about this round of talks made it pretty clear that this is a choice. It is a decision.
Basically, there are two ways of doing this. The first is the way outlined by my hon. Friend the Member for Lewisham East—that, having voted to leave the European Union, we remain part of its single market system and adhere to the rights and obligations that that gives us, and in so doing, we put the economic prosperity of our people first. That is one way, and I wholeheartedly back my hon. Friend’s assertion that the referendum did not decide this question. The referendum decided our membership of the institutions. The referendum did not decide on the manner of leaving the European Union. There are countries outside the European Union that take part in this system, and we know which they are. I do not think that this is a perfect solution by any means. There is, of course, the issue of having a say in the rules, and whatever our say is outside, it will not be like the say that we have now. My hon. Friend the Member for Lewisham East covered that as well.
The other option involves a free trade agreement, something akin to what has been negotiated with other countries. This matters to our economy. We have talked a lot in these debates—and I have been guilty of it myself—about the importance of manufactured goods. We have talked a lot about cars, we have talked a lot about aerospace, and we have talked a lot about agricultural products. All those are all hugely important to our economy, but 80% of it consists of services. We are hugely successful at them, and we are hugely successful at exporting them. Tens and hundreds of thousands of jobs are sustained by financial services, insurance, legal services, business services and so on. I must say to those who advocate the FTA option that the blunt truth is that no existing FTA would give us anything like the access to the services market that we currently enjoy as members of the single market.
That, fundamentally, is the choice that we must make. The Solicitor General resisted the existing comparisons, as the Government have throughout: they have said, “We will have a bespoke arrangement that is somehow different from this.” Let me tell the Solicitor General candidly that not a single person on the other side of the table last week thought that that was possible.
This is a decision, a choice. What kind of Brexit will we have? Fundamentally, at some point, the Government will have to face up to the truth, be candid with their Back Benchers and the House as a whole, and be candid with the public. The choice, in the end, is not just a choice between systems, but a choice between economics and nationalism. It is a choice about whether we put the prosperity of our constituents first or the nationalist ideology that is driving this agenda, and I know which I prefer.
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 legislation” 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 2006”,
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. This”,
“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.”
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 legislation” 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.
The consequence of the Plaid Cymru amendment would therefore be that all such legislation would fall outside the definition of EU-derived domestic legislation and would therefore not be preserved in domestic law at the moment of exit from the European Union. The enormous legislative gap thus created would be disastrous for the people of Wales, given the circumstances of our exit, and would make it extremely difficult for the United Kingdom Government to agree a transitional arrangement with the EU, or, indeed, a free trade agreement, given the huge legislative desert that would be created. I have no doubt that that is not what was intended by the hon. Member for Carmarthen East and Dinefwr and his colleagues, and I therefore invite him not to press the amendment.
Amendment 217, read alongside amendment 64 to schedule 8, would exclude the EEA agreement from the Bill, thus allowing the UK to remain in the EEA. There has been much discussion today about the EEA agreement, which is an agreement between the member states of the EU, the EU itself and three of the four members of EFTA: Iceland, Norway and Liechtenstein. The UK is undoubtedly a contracting party to the agreement in its own right. Indeed, it has no option but to be so, since article 128 of the EEA agreement provides that any European state becoming a member of the European Community—or, now, the European Union—must apply to become party to the EEA agreement. In other words, British membership of the EEA is effectively a consequence of its membership of the European Union. The United Kingdom has of course given notice of its intention to withdraw from the European Union and, by application of the provisions of article 50 of the treaty on European Union, when that notice becomes effective the EU treaties will cease to apply to the United Kingdom.
This also has an impact on British membership of the EEA. Article 126 of the EEA agreement explicitly provides that it applies to the territories to which the treaty establishing the European Economic Community—now the European Union—is applied, as well as to the three EFTA member states. Given that the EU treaties will no longer apply to the UK at that point, and given that the UK is not one of the three EFTA member states mentioned in the EEA agreement, it necessarily follows that at that point—the moment of the UK’s departure from the European Union—we will cease to be subject to the provisions of the EEA agreement. In other words, British membership of the EEA will effectively automatically fall at that point.