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“(1) No powers to make regulations under this Act may be used for the purposes of implementing the withdrawal agreement.
(2) The Secretary of State must lay a report before Parliament detailing how the withdrawal agreement will be implemented, including any proposed primary legislation.”—(Yvette Cooper.)
This new clause is linked to the removal of Clause 9 and paragraph 6 of Schedule 7 to require the Government to implement the withdrawal agreement through separate primary and secondary legislation rather than through this bill.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 4—Arrangements for withdrawing from the EU—
“Notwithstanding any powers granted under this Act, no Minister of the Crown may agree to the arrangements for the withdrawal of the United Kingdom from the European Union referred to in Article 50(2) of the Treaty on European Union until Royal Assent is granted to an Act of Parliament—
(a) authorising the Minister to agree to an exit day to be specified in the Act,
(b) authorising the Minister to agree to those arrangements that will apply after exit day, the arrangements to be specified in the Act.”
This new clause would ensure that a separate Act of Parliament would be required for Ministers to determine exit day and to set out the arrangements that will apply after exit day.
New clause 19—Publication of the Withdrawal Agreement—
“The powers for Ministers set out in section 9 shall not come into force unless and until a final withdrawal agreement made between the United Kingdom and the European Union has been published and copies placed in the Libraries of the House of Commons and the House of Lords.”
This new clause would ensure that the wide-ranging powers for Ministers to implement the withdrawal agreement set out in Clause 9 of the Bill cannot come into force until the withdrawal agreement has been published.
New clause 38—Status of Irish citizens in the United Kingdom—
“Before making any regulations under section 9, the Minister shall commit to making available to Irish citizens lawfully resident in the United Kingdom after exit day any status, rights and entitlements available to Irish citizens before exit day, inclusive of and in addition to their status, rights and entitlements as EU citizens.”
New clause 66—Parliamentary approval for the outcome of negotiations with the European Union—
“No exit day may be appointed under this Act until the terms of the United Kingdom’s withdrawal from the European Union, including leaving the EU without an agreement, have been approved by both Houses of Parliament.”
This new clause is intended to establish that Parliament has a meaningful vote on the terms of Britain’s withdrawal from the European Union.
New clause 68—Terms of withdrawal: approval by Parliament—
“(1) The Government shall not conclude any agreement on terms of withdrawal from the European Union, or on the UK’s future relationship with the European Union, until those terms have been approved by resolution in both Houses of Parliament.
(2) Approval by resolution of both Houses of Parliament must be sought no later than three months before exit day.”
This new clause would require the Government to seek Parliamentary approval for its exit agreement with the EU at least three months before exit day.
New clause 69—United Kingdom withdrawal from the EU—
“(1) Subsection (2) applies if either of the conditions in subsection (3) or (4) is met.
(2) The Prime Minister must seek an agreement with the EU on one or more of the following—
(a) extending the negotiations beyond the two-year period specified in Article 50 of the Treaty on European Union; or
(b) agreeing that negotiations over the final terms of the United Kingdom’s withdrawal from the EU may take place during a negotiated transitional arrangement which broadly reflect current arrangements and which begins immediately after the Article 50 notice period expires and the EU treaties cease to apply to the UK; or
(c) any other course of action in relation to the negotiations (with the EU over the withdrawal of the United Kingdom) which has been approved in accordance with this section by a resolution of the House of Commons.
(3) The condition in this subsection is that no Article 50 withdrawal agreement has been reached between the United Kingdom and the EU by
(4) The condition in this subsection is that an Article 50 withdrawal agreement has been reached between the United Kingdom and the EU but the proposed terms of withdrawal have not been approved by resolutions of both Houses of Parliament by
(5) Nothing in this section may be amended by regulations made under any provision of this Act.”
The intention of this new clause, which could be amended only by primary legislation, is to specify the actions that should be taken if the Government does not secure a withdrawal agreement by 31 Oct 2018 or that Parliament does not approve a withdrawal agreement by
New clause 75—Implementing the withdrawal agreement (No. 2)—
“(1) No powers to make regulations under this Act may be used for the purposes of implementing the withdrawal agreement.
(2) The Secretary of State must lay a report before Parliament detailing how implementing the withdrawal agreement will be achieved through primary legislation.
(3) For the purposes of subsection (1) and (2), “implementing the withdrawal agreement” may include any necessary provision for a transitional period after the exit day appointed for section 1 of this Act.
(4) For the purposes of subsection (1) and (2), “implementing the withdrawal agreement” must include any necessary provision to ensure that any citizens of any EU Member State who are lawfully resident in the UK on any day before exit day can continue to be lawfully resident after exit day on terms no less favorable than they currently enjoy.”
This new clause is intended to ensure that primary legislation is used to implement the withdrawal agreement, including maintaining EU citizens’ rights.
Amendment 7, in clause 9, page 6, line 45, at end insert
“, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”
To require the final deal with the EU to be approved by statute passed by Parliament.
Amendment 355, page 6, line 45, at end insert “, subject to—
(a) the prior enactment of a statute by Parliament, and
(b) an affirmative resolution passed by the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly, approving the final terms of withdrawal of the United Kingdom from the European Union.”
This amendment would require the final deal with the EU to be approved by statute passed by both Parliament and by the devolved administrations.
Amendment 361, page 7, line 2, at end insert—
“( ) Regulations under this section may, notwithstanding sections 1 and 5(1), make provision to replicate, for such an implementation period as is provided for in the withdrawal agreement, any aspect of the operation of EU law in the United Kingdom.”
The amendment would make clear that aspects of EU membership, such as the automatic effect of EU law and enforcement and adjudication mechanisms, can be maintained for an implementation period if the Government agrees to do so as part of the withdrawal agreement.
Amendment 142, page 7, line 8, at end insert—
“(e) remove, reduce or otherwise amend the rights of any citizen of an EU Member State who was lawfully resident in the UK on any day before
This amendment seeks to protect the existing rights of EU citizens living in the UK.
Amendment 47, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section unless the terms of the withdrawal agreement have been approved by both Houses of Parliament.”
Amendment 196, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until a Minister of the Crown has submitted a formal request to the President of the European Council that the UK should continue to be a member of the European Union’s Political and Security Committee after exit day.”
Amendment 197, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until a Minister of the Crown has submitted a formal request to the President of the European Council that the UK should continue to be a signatory to all agreements signed through the European Union’s Common Foreign and Security Policy.”
Amendment 198, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until a Minister of the Crown has submitted a formal request to the President of the European Council that the UK should continue to be a member of the European Union’s Foreign Affairs Council.”
Amendment 199, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until a Minister of the Crown has submitted a formal request to the President of the European Council that the UK should continue to be a member of the European Bank for Reconstruction and Development.”
Amendment 227, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the Chancellor of the Exchequer has laid before Parliament an assessment of the impact of the UK leaving the EU single market on the forecast to the UK’s public finances.”
This amendment would require publication of a Government assessment of the impact of the United Kingdom exiting the EU single market on the UK public finances, before any regulations are made under section 9.
Amendment 228, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the Chancellor of the Exchequer has laid before Parliament an assessment of the impact of exiting the EU single market on levels of GDP growth.
(3B) Any assessment under subsection (3A) shall set out an assessment of the impact of exiting the EU single market on levels of GDP growth in—
(b) Northern Ireland,
(c) England, and
This amendment would require publication of a Government assessment of the impact of the United Kingdom exiting the EU single market on the levels of GDP growth in the UK and in each part of the UK, before any regulations are made under section 9.
Amendment 229, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the Chancellor of the Exchequer has laid before Parliament an assessment of the impact of ending freedom of movement on the UK’s public finances.”
This amendment would require publication of a Government assessment of the impact of the United Kingdom ending freedom of movement on the UK’s public finances, before any regulations are made under section 9.
Amendment 230, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until the Chancellor of the Exchequer has laid before Parliament an assessment of the broadened responsibilities of the UK Treasury following the UK’s withdrawal from the EU.”
This amendment would require publication of a Government assessment of the broadened responsibilities of the UK Treasury following the UK’s withdrawal from the EU, before any regulations are made under section 9.
Amendment 300, page 7, line 8, at end insert—
“(3A) No regulations may be made under this section until—
(a) the Government has laid before Parliament a strategy for maintaining those protections, safeguards, programmes for participation in nuclear research and development, and trading or other arrangements which will lapse as a result of the UK’s withdrawal from membership of, and participation in, the European Atomic Energy Community (Euratom), and
(b) the strategy has been approved by both Houses of Parliament.”
This amendment would prevent the Government using any delegated powers under Clause 9 until it had secured Parliamentary approval for its proposals to replace any provisions that cease to apply as a result of the UK’s withdrawal from membership of Euratom.
Amendment 55, page 7, line 9, at end insert
“or until the withdrawal agreement has been published and legislation proposed in the 2017 Gracious Speech in relation to customs, trade, immigration, fisheries, agriculture, nuclear safeguards and international sanctions has been published.”
This amendment would ensure that powers to Ministers to make regulations implementing the withdrawal agreement cannot be exercised until such time as the withdrawal agreement has been published along with the publication of associated legislative proposals on customs, trade, immigration, fisheries, agriculture, nuclear safeguards and international sanctions.
Amendment 19, page 7, line 9, at end insert—
“(5) Regulations under this section will lapse two years after exit day.”
Although the power conferred by this clause lapses on exit day, there is no sunset clause for the statutory instruments provided under it. This would make all such statutory instruments lapse two years after exit day and require the Government to introduce primary legislation if it wanted to keep them in force.
Amendment 74, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has signed an agreement with the EU guaranteeing that the UK will remain a permanent member of the EU Single Market.”
Amendment 75, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has signed an agreement with the EU guaranteeing that the UK will remain a permanent member of the EU Customs Union.”
Amendment 116, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until such time as the terms of the withdrawal agreement have been approved by a Ratification Referendum, giving voters the options of supporting the terms of the withdrawal agreement, or remaining in the EU.”
This amendment seeks to ensure that Ministers cannot make and use secondary legislation for the purposes of implementing the withdrawal agreement until such time as that agreement has been approved by a Ratification Referendum.
Amendment 143, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until such time as the Government has signed an agreement with the EU that maintains and guarantees the existing rights of EU citizens living in the UK, and UK citizens living elsewhere in the EU, as of
This amendment seeks to protect the existing rights of both EU citizens living in the UK, and UK citizens living elsewhere in the EU.
Amendment 156, page 7, line 9, at end insert—
“(5) No regulations may be made under this section unless the requirement in section [Status of Irish citizens in the United Kingdom] has been satisfied.”
Amendment 224, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for the UK to retain access to the EU’s Emissions Trading System markets after withdrawal from the EU.”
This amendment would require the Secretary of State to publish a strategy to retain access to the EU’s Emissions Trading System markets after withdrawal.
Amendment 225, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for the UK’s continued participation in the North Seas Countries’ Offshore Grid Initiative after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for the UK to continue participation in the North Seas Countries’ Offshore Grid Initiative after withdrawal from the EU.”
Amendment 231, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Chancellor of the Exchequer has published a statement setting out a strategy for retaining access to the European Investment Bank.”
This amendment would require the Government to publish a strategy for retaining access to the European Investment Bank.
Amendment 232, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Chancellor of the Exchequer has published a statement setting out a strategy for retaining membership of the European Investment Fund.”
This amendment would require the Government to publish a strategy for retaining access to the European Investment Fund.
Amendment 238, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking the maintenance of UK membership of the European Food Safety Authority on existing terms after withdrawal from the EU.”
This amendment would require the Government to publish a strategy for continuing to be a member of the European Food Safety Authority.
Amendment 241, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking the preservation of reciprocal healthcare agreements on existing terms as under social security coordination regulations 883/2004 and 987/2009 after the UK’s withdrawal from the EU.
(6) Any changes to regulations in subsection (5) shall only be made after—
(a) the House of Commons has passed a resolution approving changes to regulations mentioned in subsection (5),
(b) the Scottish Parliament has passed a resolution approving changes to regulations mentioned in subsection (5),
(c) the National Assembly of Wales has passed a resolution approving changes to regulations mentioned in subsection (5), and
(d) the Northern Ireland Assembly has passed a resolution approving changes to regulations mentioned in subsection (5).”
This amendment would require the Secretary of State to publish a strategy for seeking to ensure that reciprocal healthcare arrangements continue after the UK leaves the EU.
Amendment 242, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain UK membership of the European Medicines Agency on existing terms after withdrawal from the EU.”
This amendment would require the Government to publish a strategy for continuing to be a member of the European Medicines Agency.
Amendment 243, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain UK membership of the European Agency for Safety and Health at Work after withdrawal from the EU.”
This amendment would require the Government to publish a strategy for continuing to be a member of the European Agency for Safety and Health at Work.
Amendment 244, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain UK membership of the European Chemicals Agency after withdrawal from the EU.”
This amendment would require the Government to publish a strategy for continuing to be a member of the European Chemicals Agency.
Amendment 245, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain UK membership of the European Single Sky Agreement on existing terms after withdrawal from the EU.”
This amendment would require the Government to publish a strategy for continuing to be a member of the European Single Sky Agreement.
Amendment 246, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain UK membership of the European Aviation Safety Agency on existing terms after withdrawal from the EU.”
This amendment would require the Government to set out a strategy for seeking to ensure that the UK continues to be a member of the European Aviation Safety Agency after withdrawal from the EU.
Amendment 247, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to retain UK membership of the European Maritime Safety Agency on existing terms after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for seeking to ensure that the UK continues to be a member of the European Maritime Safety Agency after withdrawal from the EU.
Amendment 248, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to retain UK membership of ERASMUS on existing terms after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for seeking to ensure that the UK continued to be a member of the ERASMUS scheme after withdrawal from the EU.
Amendment 249, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to maintain access for the UK to reciprocal roaming charge agreements on existing terms as under Regulation 2017/920, after withdrawal from the EU.”
This amendment would seek to ensure that roaming charges do not come into effect after exit day for UK citizens in the EU and vice versa.
Amendment 250, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out a strategy for seeking to retain UK membership of Creative Europe on existing terms after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for seeking to ensure that the UK continued to be a member of Creative Europe after withdrawal from the EU.
Amendment 251, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has made a formal request to President of the European Council that the UK continues membership of the European Union Agency for Fundamental Rights after withdrawal from the EU.”
This amendment would require the UK to make a request to the President of the European Council for continued UK membership of the European Agency for Fundamental Rights after withdrawal from the EU.
Amendment 252, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has published a strategy for reaching an agreement with the EU to enable the UK to have continued access to Passenger Name Records after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for seeking to ensure that the UK continued to have access to Passenger Name Records after withdrawal from the EU.
Amendment 253, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have access to the Schengen Information System after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the Schengen Information System after withdrawal from the EU.
Amendment 254, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have continued access to the European Arrest Warrant.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the European Arrest Warrant after withdrawal from the EU.
Amendment 255, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have membership of EUROPOL.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have membership of EUROPOL after withdrawal from the EU.
Amendment 256, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have membership of EUROJUST.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have membership of EUROJUST after withdrawal from the EU.
Amendment 257, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have access to the European Criminal Records Information system with the EU.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the European Criminal Records Information system with the EU after withdrawal from the EU.
Amendment 258, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have access to the Prüm Council decisions relating to fingerprint and DNA exchange with the EU.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the Prüm Council decisions relating to fingerprint and DNA exchange with the EU, after withdrawal from the EU.
Amendment 259, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have access to the False and Authentic Documents Online (“FADO”) internet-based image archiving system.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the False and Authentic Documents Online (“FADO”) internet-based image archiving system after withdrawal from the EU.
Amendment 260, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to participate in the Convention on Mutual Assistance and Cooperation between Customs Administrations of 1997 (“Naples II Convention”).”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to participate in the Convention on Mutual Assistance and Cooperation between Customs Administrations of 1997 (“Naples II Convention”), after withdrawal from the EU.
Amendment 261, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for reaching agreement with the EU to enable the UK to continue to have access to the EU Intelligence Analysis Centre.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable the UK to continue to have access to the EU Intelligence Analysis Centre after withdrawal from the EU.
Amendment 262, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before both Houses of Parliament setting out a strategy for ensuring that lawyers registered to practise in England, Wales, Northern Ireland and Scotland shall not lose their right of audience at the European Court after the UK’s withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to enable British-registered lawyers to continue to appear before the Court of Justice of the European Union, after withdrawal from the EU.
Amendment 263, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before both Houses of Parliament setting out a strategy for ensuring that lawyers from England, Wales, Northern Ireland and Scotland shall not lose their status of legal profession privilege concerning communications with regard to proceedings before the European Court, after the UK’s withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for reaching agreement with the EU to ensure that communications from British-registered lawyers with regard to proceedings before the European Court continue to be covered by legal profession privilege, after withdrawal from the EU.
Amendment 275, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before both Houses of Parliament an agreement with the Scottish Government for the freedom of movement of EU citizens in Scotland to continue after exit day.”
This amendment would facilitate the continuance of free movement in and out of Scotland after exit day.
Amendment 276, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before both Houses of Parliament setting out a strategy for continued participation by the United Kingdom in the common European Asylum System.”
This amendment would require the Secretary of State to set out a strategy for continued participation by the United Kingdom in the common European Asylum System, after withdrawal from the EU.
Amendment 343, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid before Parliament a strategy for a food standards framework after withdrawal from the EU.”
This amendment would require the Secretary of State to set out a strategy for a food standards framework after withdrawal from the EU, before making any regulations implementing the withdrawal agreement.
Amendment 351, page 7, line 9, at end insert—
“(5) No regulations may be made under this section until the Secretary of State has laid a report before Parliament setting out plans that seek to secure continued clinical trials agreements as under EU Regulation 536/2014 after the UK’s withdrawal from the EU.”
This amendment would ensure harmonisation of clinical trials across the EU Member States will continue in the UK after the UK leaves the EU.
Clause 9 stand part.
New clause 7—Consultation—
“The Government shall follow the principles set out in the Cabinet Office Code of Practice in respect of public consultation in advance of regulations being made under powers granted by this Act.”
This new clause would commit Ministers to abiding by the existing Cabinet Office code of practice on consultations in respect of regulations to be made under the Bill.
New clause 12—Social, employment and environmental protection—
“Any rights, protections, liabilities, obligations, powers, remedies and procedures which exist immediately before exit day in the fields of—
(a) social and employment law, and
(b) environmental law will not be amended through any regulations made to deal with deficiencies or withdrawal unless approved by a resolution of each House of Parliament or by Act of Parliament”
This new Clause would ensure that social, employment and environmental laws cannot be changed by the order-making powers delegated to Ministers without a vote in Parliament.
New clause 57—Citizens’ Jury on Brexit Negotiations—
“(1) A citizens’ jury shall be established to enable UK citizens to be consulted on the progress of negotiations between the UK and the EU on the withdrawal of the UK from the EU, and the approach outlined in UK Government White Papers.
(2) The citizens’ jury shall in total be composed of exactly 1501 persons.
(3) Members of the citizens’ jury shall be randomly selected by means of eligibility from UK citizens on the current electoral register as registered on the date of this Act receiving Royal Assent, with allocation across the nine UK Government Regions, Scotland, Wales and Northern Ireland weighted by population, and a stratification plan, with the aim of securing a group of people who are broadly representative demographically of the UK electorate across characteristics including whether they voted Leave or Remain.
(4) The jury will be broken down into individual sittings for each of the nine UK Government Regions in England, as well as Scotland, Wales and Northern Ireland.
(5) The sittings will be for no more than 72 hours at a time, facilitated by independent facilitators, and if required, by electing fore-people from within their number.
(6) Membership of the jury will be subject to the same regulations and exceptions as a regular jury, but membership can be declined without penalty.
(7) The citizens’ jury will be able to require Ministerial and official representatives of the UK Government and the Devolved Administrations to give testimony to them to inform their work, and to have the power to invite other witnesses to give evidence as required.
(8) The citizens’ jury shall publish reports setting out their conclusions on the negotiations and UK Government White Papers.
(9) The first report from the citizens’ jury shall be published within two months of this Act receiving Royal Assent, and subsequent reports shall be published at intervals of no more than two months.
(10) Costs incurred by the citizens’ jury shall be met by the Exchequer.”
Clause 16 stand part.
Amendment 226, in schedule 7, page 39, line 29, at end insert—
“(g) makes changes to the application of the 2012 Energy Efficiency Directive in the UK.”
This amendment would make any changes to the application of the 2012 Energy Efficiency Directive in the UK subject to approval by resolution of each House of Parliament.
Amendment 235, page 39, line 29, at end insert—
“(g) makes changes to EU-derived domestic legislation concerning the rights of workers in the UK.”
This amendment would require that the rights of workers currently afforded by EU law that are being transposed into UK law can be changed only through affirmative procedure.
Amendment 236, page 39, line 29, at end insert—
“(g) makes changes to EU-derived domestic legislation concerning rights for disabled people in the UK.”
This amendment would require that the rights of disabled people currently afforded by EU law that are being transposed into UK law can be changed only through affirmative procedure.
Amendment 237, page 39, line 29, at end insert—
“(g) makes changes to EU-derived domestic legislation concerning annual leave rights,
(h) makes changes to EU-derived domestic legislation concerning agency worker rights,
(i) makes changes to EU-derived domestic legislation concerning part-time worker rights,
(j) makes changes to EU-derived domestic legislation concerning fixed-term worker rights,
(k) makes changes to EU-derived domestic legislation concerning work-based health and safety obligations,
(l) makes changes to EU-derived legislation concerning state-guaranteed payments upon an employer’s insolvency,
(m) makes changes to EU-derived domestic legislation concerning collective redundancy rights,
(n) makes changes to EU-derived domestic legislation concerning terms and conditions of employment rights,
(o) makes changes to EU-derived domestic legislation concerning posted worker rights,
(p) makes changes to EU-derived domestic legislation concerning paternity, maternity and parental leave rights,
(q) makes changes to EU-derived domestic legislation concerning protection of employment upon the transfer of a business, or
(r) makes changes to EU-derived domestic legislation concerning anti-discrimination.”
This amendment would list areas regarding workers’ rights where changes to EU-derived law could be made only through affirmative procedure.
Amendment 293, page 39, line 33, at end insert—
“(3A) Regulations appointing any exit day may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”
This amendment would require regulations appointing an exit day to be subject to the affirmative procedure.
Amendment 328, page 39, line 42, leave out sub-paragraphs (6) and (7).
This amendment, and Amendments 329 and 331, would remove provisions in the Bill that prescribe scrutiny procedures for the National Assembly for Wales. These amendments, coupled with Amendment 330, would allow the National Assembly for Wales to set the scrutiny procedures it considers appropriate for the control of powers proposed for the Welsh Ministers under the Bill.
Amendment 329, page 41, line 15, leave out sub-paragraphs (10) and (11).
This amendment, and Amendments 328 and 331, would remove provisions in the Bill that prescribe scrutiny procedures for the National Assembly for Wales. These amendments, coupled with Amendment 330, would allow the National Assembly for Wales to set the scrutiny procedures it considers appropriate for the control of powers proposed for the Welsh Ministers under the Bill.
Amendment 155, page 42, line 17, at end insert—
“(3A) A Minister cannot make a declaration under sub-paragraph (2) unless they have satisfied themselves that they have sufficiently consulted—
(a) relevant public authorities,
(c) people, and
(d) other organisations who are likely to be affected by the instrument.”
This amendment would require that, when using the urgent cases provision in the Bill, the Minister must first consult with businesses and other relevant organisations.
Amendment 154, page 42, line 31, at end insert—
This amendment would limit the circumstances in which Ministers can use procedures for urgent cases to circumstances in which there is a serious threat of damage to human welfare, the environment or the security of the United Kingdom.
Amendment 51, page 43, line 26, leave out paragraph 6
This amendment is linked to New Clause 3 to require the Government to implement the withdrawal agreement through separate primary and secondary legislation rather than through this Bill.
Amendment 294, page 44, line 37, after “section 17(5)” insert “, other than regulations to appoint an exit day,”
Consequential to amendment 293.
Amendment 295, page 45, line 5, after “section 17(5)” insert “, other than regulations to appoint an exit day,”
Consequential to amendment 293.
Amendment 344, page 45, line 11, at end insert—
The intention of this amendment is that tertiary legislation under the Act should be subject to the same parliamentary control and time-limits as are applicable to secondary legislation.
Amendment 58, page 45, line 23, leave out “urgency” and insert “emergency”
This amendment would remove the wider latitude currently allowing Ministers to make regulations without Parliamentary approval “by reason of urgency” and instead only allow such executive action “by reason of emergency”. An emergency is a situation that poses an immediate risk to human health, life, property, or environment.
Amendment 330, page 45, line 40, at end insert—
“Scrutiny of regulations made by Welsh Ministers
11A (1) A statutory instrument containing regulations under this Act of the Welsh Ministers must be made in accordance with the procedures from time to time set out in the Standing Orders of the National Assembly for Wales for the scrutiny of regulations under this Act.
(2) Sub-paragraph (1) applies to statutory instruments made by the Welsh Ministers acting alone and to statutory instruments made by the Welsh Ministers acting jointly with a Minister of the Crown.
(3) The Standing Orders of the National Assembly for Wales may set out different procedures for the making of different statutory instruments or for different categories of statutory instruments under this Act and, for the avoidance of doubt, may empower the Assembly or a committee of the Assembly to decide which of those procedures is to apply to an instrument or category of instruments.
(4) For the purposes of section 11A of the Statutory Instruments Act 1946, and any other provisions of that Act referred to in that section, the provisions set out from time to time in the Standing Orders of the National Assembly for Wales for the scrutiny of regulations under this Act shall be deemed to be provisions of an Act.”
This amendment would allow the National Assembly for Wales to set the scrutiny procedures it considers appropriate for the control of powers proposed for the Welsh Ministers under the Bill.
Amendment 301, page 46, line 18, at end insert—
“12A Any power to make regulations under this Act may not be exercised by a Minister of the Crown until 14 days after the Minister has circulated a draft of the regulations to the citizens’ jury appointed under section [Citizens’ jury on Brexit negotiations].”
The intention of this amendment is to provide for a citizens’ jury to be consulted before regulations are made under this Act.
Amendment 223, page 46, line 29, at end insert—
“14A Any power to make regulations in this Act relating to the oil and gas sector may not be made without—
(a) consultation, and
(b) an impact assessment, a copy of which must be laid before Parliament.”
This amendment would require consultation and an impact assessment before legislation affecting the relating to the oil and gas sector is changed by regulations made under the Act.
Amendment 331, page 48, line 14, leave out sub-paragraph (4).
This amendment, and Amendments 328 and 329, would remove provisions in the Bill that prescribe scrutiny procedures for the National Assembly for Wales. These amendments, coupled with Amendment 330, would allow the National Assembly for Wales to set the scrutiny procedures it considers appropriate for the control of powers proposed for the Welsh Ministers under the Bill.
That schedule 7 be the Seventh schedule to the Bill.
Amendment 29, in clause 17, page 13, line 34, leave out subsections (1) to (3)
This amendment would remove a widely drawn delegated power, which covers anything that happens as a consequence of the Act.
Amendment 99, page 14, line 13, at end insert—
“(8) Regulations under this section may not limit the scope or weaken standards of environmental protection.”
This amendment ensures that the power to make regulations in Clause 17 may not be exercised to reduce environmental protection.
Amendment 100, page 14, line 13, at end insert—
“(8) No regulations may be made under this section after the end of the period of two years beginning with exit day.”
This amendment imposes the same restriction on the regulation making powers under Clause 17 as applies to other regulation powers in the Bill.
Amendment 296, page 14, line 13, at end insert—
“(8) No regulations may be made under this section after the end of the period of two years beginning with exit day.
(9) Regulations made under this section may not amend or repeal retained EU law.”
This amendment would place restrictions on the power to make consequential and transitional provision.
Clause 17 stand part.
I rise to speak to new clause 3, which has cross-party support, but also amendment 7, which does something similar to my new clause, albeit, I confess, in a rather more elegant way. I defer to the drafting powers of the former Attorney General in drafting his amendment.
This, on day seven in Committee, is really where we get to the crunch on this Bill. There are two big anxieties about the content of the Bill that finally come clashing together in clause 9. The first is the sweeping use of secondary legislation through Henry VIII powers, which, regardless of one’s views on the overall legislation, have caused some unease in all parts of the House because of the way in which they concentrate power in the hands of the Executive and cut deep into our historic role in Parliament to hold the Executive to account. The second anxiety is about getting the final Brexit deal right and about making sure that Parliament has a real, meaningful say on the deal, which will define our country for generations, and that we decide together what “taking back control” should mean.
Clause 9 is where those two anxieties come crashing together, because it allows a huge concentration of power in the hands of the Executive, and it does so over the final withdrawal agreement on the outcome of Brexit. Notwithstanding the commitments that the Prime Minister has made today and the written statement that we have seen, the reality is that clause 9 would allow Ministers to start to implement a withdrawal agreement entirely through secondary legislation and to do so even before Parliament has endorsed the withdrawal agreement.
Many of us hear what the right hon. Lady says about the Henry VIII clauses and the power grab, but does she not accept that the quid pro quo of that is that, while many in this House were quite happy for the EU to conduct a power grab, they seem less trusting of their own Government when it comes to these clauses?
The hon. Gentleman makes an important point about parliamentary sovereignty, which was indeed a key issue that was debated in the referendum. In fact, many people argued in the referendum that what they were doing was bringing sovereignty back here, from having shared sovereignty with the EU. I do not think we are arguing that sovereignty should be handed over in a concentrated way to a small group of Ministers instead. That is the responsibility on us. We know that of course there are times when Parliament needs to give Ministers power on our behalf to use through secondary legislation, but we should do so cautiously and sensibly and make sure that the right safeguards are in place. That is the problem with the Henry VIII powers in this Bill, and not just in clause 9 but in clause 7. The challenge, too, is that we are being asked to do that on an issue that will define our country for generations. Each and every one of us will be judged on what we did in this place to get that Brexit deal right.
Does the right hon. Lady agree that it is most welcome that, since my right hon. and learned Friend Mr Grieve tabled his amendment 7, it has been agreed that there does need to be an Act of Parliament? Is not the weakness of clause 9 that there is still no trigger requiring the consent of Parliament to the withdrawal agreement before the regulations can be laid and used?
The right hon. and learned Gentleman is exactly right, and that is why we have a cross-party interest in these issues. Not only is there no trigger on the face of the Bill—clause 9 will still allow Ministers this huge concentrated power to go ahead and implement the withdrawal agreement without Parliament’s agreement—but there is also a second difference, certainly for me in what Ministers have set out so far, about how a meaningful vote should take place. I want to come on to that as well.
New clause 3 says that Parliament will not yet give the Government permission to use secondary legislation to implement the withdrawal agreement, and that instead the Government must set out their plans for primary legislation to implement the withdrawal agreement. If secondary legislation is needed at that time, as part of the implementation process, those powers should be taken in the withdrawal agreement Bill—the second Bill—so that Parliament is not just handing over a blank cheque, but is deciding what powers are needed and making sure that the proper scrutiny and checks and balances are in place at that time.
I do not think this is really a controversial proposal. It is basically saying that Parliament should hand over no more power to the Executive than it needs to and should not hand over power to the Executive until it needs to and until it knows what is going on. New clause 3 also has the effect of requiring a meaningful vote in primary legislation on the withdrawal agreement before it can be implemented. That is not really a controversial proposal either. It simply says that we should have a proper vote on the most important thing to pass through Parliament in a generation—and a meaningful vote in primary legislation, as is fitting for something so important—and that we should do so before and not after we give Government the powers to start implementing it.
Amendment 7, which was tabled by Mr Grieve, has broadly the same effect. Rather than removing the powers from clause 9, it simply says that they cannot be used until a statute or primary legislation has been passed supporting the withdrawal agreement. Again, that means that Parliament does not blindly hand over powers to the Executive in a trusting way without knowing what the consequences will be or what the agreement looks like.
The whole point of this Bill is that it is taking back power to this country and this Parliament, so that we can decide for ourselves what will happen. All the significant powers in the Bill are subject to the affirmative resolution and those that are not will now be subject to a sifting committee. We are recovering from a situation where, as members of the European Union, we had handed over all these decisions, lock, stock and barrel, to the European Union, so the Bill is a massive improvement, and to dress up this attempt to reverse Brexit as an argument in favour of parliamentary sovereignty is nothing but cant.
Oh my, what Stalinism is this?—that any attempt to disagree with the way in which this Bill is drawn up is somehow a betrayal of Brexit! What rubbish! How insecure are Members who object to any changes in the Bill, if they cannot see that it is Parliament’s job—a job that they argued for when they stood up and tried to defend parliamentary sovereignty—to take some responsibility by scrutinising legislation and proposing amendments to it? That is all we are doing now. We are putting forward an amendment to the way in which the Brexit process—the withdrawal process—should take place. The idea that this somehow undermines the referendum decision is just a load of rubbish and the hon. Gentleman well knows it, and if he had any better arguments, he would put them, rather than using something that is so ridiculous.
The argument that we have heard from Sir Oliver Heald and Mr Jenkin is really quite ludicrous. They opposed what they described as a power grab by Brussels—by the European Union—while we were members of the European Union. They now seem to be advocating a power grab by the Executive, although they said that they wanted to take back control for the legislature of this country. If taking back control does not mean taking back control for the legislature, why on earth did we have the referendum in the first place?
My hon. Friend is exactly right. Let me say to the Conservative Members who seem to be suddenly so keen to give away powers from Parliament to the Executive, that part of our historic tradition has always been our objection to concentrations of power, and indeed our relationship with the EU was a sharing of power rather than a concentration of power. I realise that people objected to that, and this debate is not a rerun of the referendum; it is about how we implement the referendum result. However, it is also—or should be—about Parliament having the confidence to say, “We do not believe in concentrations of power, and we think that each and every one of us has a responsibility to do what we, as elected parliamentarians, think is right, and get the best Brexit deal for the country.”
The power that the Executive will have in making regulations under the clause will be subject to Parliament, because secondary legislation comes to Parliament. These regulations are of a different order of magnitude from regulations made by the European Union, which can be made by qualified majority vote against the will of the British Government and are automatically British law. So this is, in fact, restoring parliamentary oversight to the making of laws.
The hon. Gentleman has himself been a strong advocate of the responsibilities and powers of Parliament, but it does not take long for him to become completely lost down a sidetrack and start talking about what our relationship with the EU has been for very many years. The point is that this process is about how that relationship will change. We know that it is due to change as a result of the referendum and the article 50 negotiations, but the responsibility for all of us is to determine how it should change. The hon. Gentleman knows as well as I do, and as well as every other Member in the House, that the giving of powers in secondary legislation concentrates powers in the hands of Ministers, and does not receive the same scrutiny. Furthermore, this is not just about the concentration of power through clause 9; it is also about the process through which the Government want to make the decisions on the withdrawal agreement in order to trigger clause 9.
I assume that the right hon. Lady has read clause 9. Does she share my concern about the fact that some people seem not to have done so? Am I right to conclude that the clause means that the Government negotiate a withdrawal agreement—arguably one of the most important things that have happened for decades—which will not come to us here, but will be implemented by Ministers? As the Bill stands, that is it: apparently there will be no further involvement of this sovereign Parliament.
I do agree, and I think that goes to the heart of our concern.
It ought to be possible for the Government to agree to my new clause 3, or to amendment 7. Let us think about the points that they have already made. First, they have recognised that there is a problem if too much power is concentrated in the hands of the Executive. They said so yesterday during the debate on clause 7, and I think that they recognise the importance of safeguards on the use of Executive powers. Secondly, they have said that there will be a meaningful vote on the withdrawal agreement. I welcome that, but I think there is still a difference between us on what counts as a meaningful vote. Thirdly, they have said that there will now be primary legislation on the withdrawal agreement, and I welcome that as well. If we put all those three things together in the right way—the commitment to primary legislation, the commitment to a proper vote and say for Parliament, and concern about the concentration of powers—we get amendment 7 or new clause 3. It is the same thing.
Following the point made by my right hon. Friend Anna Soubry, may I ask whether the right hon. Lady agrees that the statutory instruments that we are discussing relate to matters of constitutional significance—matters of the sort that we normally only debate on the Floor of the House? It would be wrong for those matters to be dealt with in Committee when the House has not necessarily even agreed to the withdrawal agreement.
The right hon. and learned Gentleman is absolutely right. This is not the Legislative and Regulatory Reform Act 2006, which was all about minor and detailed changes and consolidating legislation through secondary legislation—or that, at least, was its intention. As the right hon. and learned Gentleman says, this is about hugely constitutionally significant legislation and changes that will affect the course of events in this country for generations.
The right hon. Lady mentioned the different definitions of a “meaningful vote”. Does she agree that a vote that took place at a point at which, for instance, Parliament could not say to the Government, “What you have negotiated is not acceptable” would not constitute a meaningful vote?
The right hon. Gentleman is exactly right. The timing of the vote matters, but so does its constitutional status. That is why I think it immensely important for this to be a statutory vote.
Let me explain why the Government’s words and the Prime Minister’s words—in the written ministerial statement, in various letters and so on—are not enough, and why we need to vote on either amendment 7 or my new clause 3. First, the Government’s unwillingness to put their promises on the face of the Bill is a problem. Parliament needs commitments in legislation before we can give the Executive such strong powers—such constitutional powers—and we need that commitment on the face of the Bill before and not after we do so. Secondly, there is still a difference between us on what counts as a meaningful vote. Without either new clause 3 or amendment 7, it would still be possible for Ministers to offer only a vote on a motion on the withdrawal agreement, and that indeed is the Prime Minister’s intention. The written ministerial statement published this morning says:
Does the right hon. Lady share my concern about the fact that the vote on the motion of both Houses will come after the ratification of the treaty, and the fact that this House has no power or ability to change treaty terms under the ratification, which renders any vote on the motion meaningless?
I think the hon. Lady is right. The Minister will be able to clarify this later, but I think it is a key point that the vote on the primary legislation— on the implementation of the Bill—will not happen until after the treaty has been ratified. I think that there is still some confusion about whether the vote on a motion, or a resolution, will happen before or after the ratification of the treaty, but the main point I want to make about the weakness of trying to do this simply through a resolution is that it is the primary legislation that counts, and it is clear from what the Minister has said, and what has been said in the written ministerial statement, that the primary legislation vote, the statutory vote, will not happen until after the ratification and the whole legal process have been completed.
The written ministerial statement makes it very clear that the meaningful vote will come after the negotiations have been concluded, but before ratification. That is precisely why it was published today.
I think that there is a big difference between us on the word “meaningful”. I shall be happy to give way to the Minister again, but I think that he should clarify the position, and confirm that the only vote that we will have before the ratification of the treaty is a vote on a motion.
We are talking about a “take it or leave it” deal, and about a “take it or leave it” vote on the completed deal. That is the only thing that is there, even in the written ministerial statement; and there is no guarantee in the legislation, by the way. The Minister is not proposing to put that on the face of the Bill. Even if we take the written ministerial statement in good faith, and even if we rip up our commitment to putting things on the face of the Bill, all that the Minister has given us is the possibility of a vote on a motion, not a vote on primary legislation before the ratification of the treaty.
I would not take any consolation from what the Minister has said. The formal process of ratification of a treaty, under the Constitutional Reform and Governance Act 2010, is that the treaty is laid before the House by a Minister, and if the House has not annulled it within 21 days, it goes ahead. However, we can only have a vote on annulment if the Government allow it, and in recent years they have regularly chosen not to do so. It is perfectly possible, consistent with what the Minister has just said, that the only vote we would have—and this may be what he means by a meaningful vote—is the vote on annulment, which is a “take it or leave it”, completely meaningless vote.
My hon. Friend is absolutely right, and that goes to the heart of this: in the end, the power is still concentrated in the Executive’s hands, whether it is the power to give us a vote on the treaty at all or the power over the timing of any of these votes. That is all still in the Government’s hands, with no reassurances in the Bill, and then there is still only this proposal simply to have a vote on a motion, not a vote on statute with all the scrutiny that brings.
That is clearly a possibility, but I think we should trust in the maturity of Parliament. It is possible for people to vote in different ways, but we have long-standing processes between our two Houses for resolving differences and debating them. My problem is that we are not actually being given the opportunity to have those proper meaningful votes through legislation, and instead we just have these motions, which have no constitutional status.
Can the right hon. Lady confirm that it is Government policy that this place will be given, to use their expression, a meaningful vote? For example, as the talks progress, some hon. Members might say, “Well, hang on a moment; my pharmaceutical industry is being excluded from this arrangement on trade under this particular head of agreement.” That is an example of doing something “meaningful”—the ability of those of us in this place, acting on behalf of our constituents, to change some of the drift of the negotiations, to get a deal that suits everybody in our country.
The point about a potential difference between the House of Lords and the House of Commons again makes me concerned that the Government are toying with only allowing a vote on an annulment motion, presumably tabled by the Opposition rather than the Government, on the original treaty, because then they would have sanction under the Constitutional Reform and Governance Act 2010, which determines what happens if there is a difference between the Lords and the Commons. So, again, I spy a rat.
My hon. Friend is right, and that again shows the importance of having these commitments in the Bill, so that there can be no doubt and no possibility of the Government using clause 9 to start implementing an agreement on which there has been no meaningful vote.
Can the right hon. Lady explain how the timing will work? If there is to be legislation to approve a withdrawal agreement before March 2019, what happens if the agreement is reached too late to allow that legislation to go through all its stages—[Interruption]—or is this a plan to delay the Brexit date?
I thought part of the way through the hon. Gentleman’s intervention that he was finally coming up with a sensible point. I have no control over the timing of the Government’s negotiations; I hope that they and the EU will get on with this quickly, because in particular we need the transitional agreement pinned down as early as possible, as businesses need certainty—and they need that as much in my constituency as in the hon. Gentleman’s. So I hugely hope there will be plenty of time for all these debates to take place. In the event that, against the Government’s will—they have said they do not want this—it ends up being a late deal, Parliament should have the opportunity to ask the Government to extend article 50 for a couple of months, to be able to implement it properly. In fact, the Government will have to do that anyway, because they will not be able to bring clause 9 powers through fast enough not to have to do so.
That may be the case. It is clearly not what the Government want, and many of us want the certainty early on. Either way, in the end, however, the timing of the article 50 process will be determined by the Government and the EU states together, but Parliament should be able to put its view to the Government, and Parliament so far in this process will be given no choice in that and no opportunity to have its say.
There is another problem with doing this through a resolution. It is not a fit and proper way to decide something so constitutional to simply do it through a resolution or motion of this House, especially when the Government have shown, in their attitude to Opposition day motions and to resolutions they have lost, that they do not give those sorts of motions and resolutions much status and significance at all, and they do not have constitutional or legal status.
It is only fitting, therefore, for us in this Parliament to say that we should do this through statute, but that is also the most important way to make sure the vote is meaningful. As several Members have said, a motion being put to Parliament that, as the Brexit Secretary has suggested, basically says, “Vote for this deal, whatever it is, or leave with no deal at all,” in the end is not a meaningful vote for Parliament. If Parliament is being given the choice of endorsing the deal the Government have come up with, whatever it is, or alternatively saying in effect that we want no transitional agreement, no security co-operation—nothing at all—and we want to just go straight off the edge of a cliff, that in the end is not proper scrutiny and not a proper meaningful vote. It also provides no incentive for Ministers to have to make sure that what they negotiate can get support in Parliament.
At present, the Government have more incentive to come up with a deal that will get the support of the European Parliament than the support of this place. That is not on; that is not acceptable. It is unacceptable that they have more incentive to focus on the interests of the European Parliament than they have to focus on the interests of, and the potential to build consensus in, this Parliament. That is why we need a vote on statute; that is why we need a statutory vote; and that is why we need either amendment 7 or new clause 3, to have a meaningful vote before, not after, the treaty is ratified.
The right hon. Lady talked about a delay of perhaps a couple of months, but if the treaty is not right in the eyes of this Parliament, a couple of months could turn into a couple years, and, indeed, some people would like it to be a couple of decades. Therefore, she talks about a meaningful vote, but what about the meaningful vote of the people of this country, who voted last June to leave the European Union? We need to get this done as quickly as possible, to deliver what the British people voted for.
We had a referendum on whether or not Britain should leave the EU. That referendum has taken place; that decision has taken place; and Parliament has respected that decision. Despite how individual Members might have voted in that referendum, or on which side we might have campaigned, as a whole Parliament has respected that referendum result. The referendum did not decide how we leave the EU, however, or what the Brexit deal or transitional agreement should be. That is the responsibility now for the Government in negotiations, but also for this Parliament.
I point out to Members who claim that somehow we cannot have a parliamentary debate on this because it is an internationally negotiated deal—because, somehow, it is a done deal—that Parliament must be able to have a say in this process and we should trust Parliament to be mature and responsible. A lot of Conservative Members said that if we let Parliament vote on article 50, the sky would fall in because it would somehow stop the Brexit process, rip up the referendum result and get in the way of democracy. But actually, the Members of this Parliament know that we have a responsibility towards democracy. We have a mature responsibility to our constituents to defend the very principles of democracy. That is exactly why many of us, including me, voted for article 50, to respect the referendum result, but we do not believe that we should then concentrate powers in the hands of Ministers to enable them do whatever they like. We have a responsibility to defend democracy and those democratic principles. It is our responsibility as Members of Parliament to have our say and to ensure that we get the best deal for the country, rather than just give our power to Ministers.
I want briefly to deal with the Government’s objections to my new clause and to amendment 7. First, they say that we will not have time to pass the proposed primary legislation on the withdrawal agreement. That is such rubbish! We have done accelerated legislation many times in this House. We have done it on issues as sensitive as investigatory powers. We have done it in a responsible way, and we can do so again. If the Government need to bring forward several statutes to break this up, they can still do so; it just means that they would have to have a statute, and we could do this through an accelerated process if we needed to. And if the clock really is ticking, as the Government say it is, they still have the scope to ask for an article 50 extension of a month or so, to allow time for Parliament to do this.
Secondly, the Government say that we cannot have a legislative process around an internationally negotiated deal, but of course we can. This is what parliamentary sovereignty is all about, and this is about us being mature. Thirdly, they have said that this would somehow stop Brexit. Again, that is rubbish. This is about how we should do this and how we can get the legislation right. Fourthly, I know that some Conservative Members have been told that if they vote for amendment 7 and do not stick with the Government’s line, it will somehow undermine the Prime Minister’s position and be a disloyal thing to do. All I would say to them is that the Prime Minister has proved to be remarkably resilient in the face of things that are considerably worse than losing one vote on one amendment in this place. Much as I would like it to be different, the fact that she is still standing at the Dispatch Box despite the result of the election and the result of a series of other things means that she really will not be knocked over by this one amendment.
The right hon. Lady might agree with me that what causes more consternation overseas among those observing what is going on are the signs that we as a Parliament and as a Government seem from time to time to completely lose our marbles and get involved in polemical arguments that are far removed from the actual matters that we are supposed to be discussing.
The right hon. and learned Gentleman is exactly right, and I will defer to him to set out his amendment and describe its impact. The idea that we should make a confidence issue out of every single adjustment to the Brexit process or to the withdrawal Bill is just nonsense.
If we have a Bill before Parliament, it has to be possible for Members of Parliament to table amendments to it and to vote on them. In a hung Parliament, that is even more the case. The Prime Minister asked for a mandate to do all this her own way, but she did not get it. She got a hung Parliament. That puts even more responsibility on us all to work together to find something that will build consensus across Parliament and across the country. In a hung Parliament, the Government sometimes lose votes because Parliament has to do its job to build the right kind of consensus and to get the right kind of outcome.
In the end, this is all about Parliament and democracy. Each and every one of us has a responsibility to our constituents not to hand over, share or give up our authority and our sovereignty, but to exercise our responsibility to get the very best deal. For centuries, Members of Parliament have fought tooth and nail to defend democracy and the powers of Parliament against Executive power. We cannot be the generation that just rips that up and hands over all the power to the Executive. We have a responsibility—now more than ever, given the gravity of the decisions before us—to use that power responsibly and to try to build consensus. To be honest, if the Government cannot build a broader consensus in Parliament, there is no chance of their building a broader consensus in the country, and if they cannot do that, we will end up with everybody rowing over the Brexit deal for a generation to come. For the sake of all of us who want to get back to discussing our schools, our hospitals and all the other issues that face our Parliament, I urge Ministers to accept either amendment 7 or new clause 3, and to start trying to build a consensus that can get us a sustainable Brexit deal.
I rise to support new clause 3 and amendment 7. As mine is the second name attached to amendment 7, which was tabled by my right hon. and learned Friend Mr Grieve, who is mainly responsible for it, I also incline to the view that it is slightly the better drafted, but I will support either proposal if one or both are put to the vote.
I might well succeed in being reasonably brief, because I agreed with every word of the speech made by Yvette Cooper and I will not repeat what she said. A welcome note of cross-party consensus exists across a large part of the House, and it represents the cross-party consensus that is in favour of what is lazily called a soft Brexit and of having the best possible close relationship with the European Union after we leave.
The main issue in this debate seems to turn on what we mean by a “meaningful vote”, which relates to our discussion on the role of parliamentary sovereignty in a situation of this kind. I accept that today the Prime Minister—not for the first time—promised us a meaningful vote, but she later went on to qualify that slightly by talking about the need for statutory instruments to be brought forward during the period of the Bill, within the extraordinary powers that the Bill gives Ministers to enact, by regulation, even changes to British statute law. We have to be clear what a meaningful vote is, and the key is the timing. It is quite obvious that if the British Government are to be responsible to the British Parliament, the vote must take place before the Government have committed themselves to the terms of the treaty-like agreement that is entered into with the other member states. Any other vote will not be meaningful.
I will give way in just a second, but let me finish this point.
That means that a meaningful vote cannot take place until a detailed agreement has been arrived at about certainly the precise nature of our trading and economic relationships with the single market of the European Union, and actually quite a lot else besides, because we still have to embark on the security discussions, the policing discussions and the discussions about which agencies we are going to remain in and which agency rules we are going to comply with. This is, we all agree, a huge and complex agreement, and it is going to determine this country’s relationships with the rest of the continent of Europe and the wider world for generations to come. Can that happen before March 2019?
We face the genuine difficulty that it is quite obvious that we will not be remotely near to reaching that agreement by March 2019, and we have to think through what that actually means. The negotiators have been very optimistic in saying that they will have first a transition deal and then a deal by 2019. I am sure that they will try, but they have not a chance. I think that what they are actually saying—certainly the continental negotiators—is that they might be able to have some heads of agreement on the eventual destination by March 2019, which we can all carefully consider. They will certainly have to agree a transition deal of at least two years within which the rest of the process will have to be completed.
I agree with the right hon. Member for Normanton, Pontefract and Castleford that everybody wants things to be speedy, because one of things that this country is suffering from most at the moment is the appalling uncertainty caused by the fact that we have taken a ridiculous length of time to reach three obvious conclusions on the three preliminary points that had to be determined as the basis of our withdrawal. At the moment, however, we do not quite know what the British Government are going to be seeking as their end goal in the negotiations that are about to start, because the British Government, within the Cabinet, have not yet been able to agree exactly what they are seeking.
If I may say this to my desperately paranoid Eurosceptic friends, it is not as if I am somehow trying in some surreptitious remainer way to put a spoke in the wheels of the fast progress of the United Kingdom towards our destination. The Government do not know what leave means. Nobody discussed what leave meant when we were having the referendum. Our overriding duty is not just to our political allegiances and so on; it is to provide this country with a good, responsible Government who face up to the problems of the real world and, accountable to Parliament, can produce the best new order that they can for the benefit of future generations.
The right hon. and learned Gentleman is demonstrating why he is Father of the House, so I hesitate to interrupt him, but on his point about having a meaningful vote prior to the Prime Minister of the day making the deal, does he agree, with his wealth of experience, that if we are to keep the country together, it is important that that Prime Minister has in the back of her head when trying to pull off that agreement, “I have to get this through my Parliament”?
The right hon. Gentleman makes one of the points that I was going to make. The most important effect of passing either new clause 3 or amendment 7 —there is actually more to this than a meaningful vote, if we consider the various stages—and achieving proper parliamentary accountability is that that would affect the tenor of the negotiations. Like every other Head of Government in the European Union, our Prime Minister would need to have at the back of her mind, “Can I deliver to the House of Commons what I am thinking of conceding?” Every other political leader in Europe will do that, because they will have to sell what they sign up to to their own Parliaments. If we do not have a meaningful vote, we will be the only member state whose negotiators are not under a legally or constitutionally binding commitment to sell the deal, because they will be able to make the deal and then come back to the House of Commons and the House of Lords and say, “This is it. What do you think of it?”
The Father of the House is absolutely right that the Bill essentially gives the Government a blank cheque. On timing, the only commitment I can see in today’s written ministerial statement from the Secretary of State for Exiting the European Union about what will happen before we leave the EU is that the proposed withdrawal agreement and implementation Bill will be introduced before we leave. That is clearly unacceptable. Any piece of legislation seeking to do what that Bill has in mind must be passed before we leave the European Union, even if that means extending the process to maintain parliamentary sovereignty.
I agree entirely, and my next point is linked to that. The nature of the parliamentary approval cannot just be a motion; it must have statutory basis, which is the route that the Prime Minister has followed. There are various reasons for that, but the obvious one is the extremely uncertain status of resolutions of this House under current parliamentary practice. The Brexit Secretary is only the latest example of someone saying that anything that is not statutory is not legally enforceable, but just a “statement of intent”. The House of Commons keeps passing all kinds of motions with which I ferociously disagree, but they get carried by this House and make all kinds of criticisms of what the Government are doing. We have moved into a new era in which the Government are allowed to keep saying, “Parliament may pass motions, but they are worthless expressions of opinion. They are not part of our being accountable to the elected body of the House.”
Of course the original plan was not to have a Bill, but to rely on statutory instruments under clause 9 to effect changes of constitutional significance. It was then made clear recently—I think on
Again, I agree entirely, and that takes me back to something that has occurred all the way through this process. I am obviously standing here in disagreement with the Government, of whom I am critical in many respects, due to both the policy and how it has been conducted, but I have had some sympathy with them since the election, because they are trying to carry through this enormous, controversial and historic measure when they do not have a parliamentary majority, except when they can persuade the Democratic Unionist party to turn up and support them.
The process started with the extraordinary suggestion that the royal prerogative would be invoked, that treaty making was not going to involve Parliament at all, and that leaving did not require parliamentary consent. Rather astonishingly, that matter had to be taken to court, and it came to a fairly predictable conclusion. The next idea—I will not repeat what my right hon. and learned Friend Sir Oliver Heald said—was that everything would be done by statutory instruments under broad powers. However, we are slowly getting to what I would have thought is the fundamental minimum that a real parliamentary democracy should be demanding: the country will not be able to enter into a binding treaty commitment until the details have received full parliamentary approval. How we get there is no doubt a matter of some difficulty, but it must be addressed.
I will give way in a second.
The debates on this Bill have typified this Government’s approach to parliamentary scrutiny. I understand their difficulties when they have no majority and their Members include people like me and those who are trying to interrupt me—we are allegedly on the same side of the House—who fundamentally disagree with each other.
I have attended every day of our debates on this Bill. We spent yesterday discussing parliamentary scrutiny, but our proceedings have not been a great advertisement for such scrutiny. The Government’s reaction to each and every proposal is to say how carefully they have listened, how important it is and how they will go away and think about it, but then to explain why the drafting of the Bill will not currently be amended. I am sure that I have done that myself when taking legislation through the House, and it is always a joy to find out that one can get away with it for quite a long time. After a bit, one gets used to the fact that one can get away with it as long as one is suitably polite and flattering to those who are proposing amendments. The actual reasons that have been given for rejecting proposals have been all about administrative convenience—that they are obscure drafting amendments. I congratulate the parliamentary draftsmen on creating arguments of such extraordinary minutiae to support the amazing aspirations of civil servants who see a mountain of work before them and hope that most of it can proceed with the minimum of political scrutiny.
What we have not heard, and I will have to hear it today, is the political argument against Parliament having a meaningful say. What is the constitutional argument that says Parliament should be denied a statute before the Government enter into all these commitments? I have not so far heard a word expressed to try to explain that to me. That should be the key, dominant thought in the Government’s mind as they negotiate. Of course they will have to think about what will satisfy the Foreign Secretary and the Environment Secretary, and of course they will have to get something for which the Daily Mail, The Daily Telegraph and The Sun will criticise them least, and so on, but I do not think Parliament is an afterthought to those vital considerations; I think it is the parliamentary process that matters. The rest is a problem for some press officer.
My right hon. and learned Friend said earlier that other Parliaments across Europe will have a say and we will not, but I posit that that is not true. This is about the withdrawal agreement, which will be agreed under qualified majority voting by the European Council, so it is not true that every Parliament across Europe will get a say on this subject.
Qualified majority voting is an excellent innovation achieved by the Thatcher Government when we were explaining to the other Europeans how they could have an effective free trade agreement. The number of times that British Governments have ever been outvoted under qualified majority voting is tiny. Qualified majority voting could be extremely important in these negotiations, because otherwise a Government of some small state—I will not name any, because they are all friendly—could suddenly decide they have some great lobby group at home that does not want to concede to the British something that the British Government have set out to achieve. The whole thing could then be held up.
The agreement will have to go to all the Parliaments. The Parliament of Wallonia will no doubt be allowed to have a say, which, if this Government have their way, this Parliament will not. The Parliament of Wallonia will be allowed to have a say, and I am not sure whether the Scottish and Welsh Parliaments will—that remains to be seen. European Governments will all have to take a view and defend that view to their own Parliament in each and every case.
Qualified majority voting means that each Government cast a vote and, if we get a qualified majority, that is the effective decision. Each Minister who takes part in that vote is, of course, accountable to their own Parliament, to which they go home and defend their vote. If it is on a difficult, controversial subject, any sensible Minister—all those Ministers—will take the view of their Parliament before going to cast their vote on behalf of their country. It is utterly ludicrous to say that this Parliament should be denied a vote and not allowed a role because qualified majority voting somehow replaces it. My hon. Friend Mr Fysh says that what I say is untrue and, with great respect, I would say that his argument is an absurdity.
I respect my right hon. and learned Friend’s consistency on this issue. He is on public record as having once said that he looks forward to the day when the Westminster Parliament will be nothing more than a council chamber of the European Parliament.
When my right hon. and learned Friend says that leavers did not know what they were voting for, he risks sounding very condescending, because we knew exactly what we were voting for: to reclaim our laws and to reclaim our finances. Although one accepts his point that one cannot predict the future in any detail, that is as much true for the EU as it is for this country.
My hon. Friend is not the sort who usually repeats the more scurrilous right-wing rubbish that fanatical Eurosceptics come up with about what I have and have not said in the past. I am not, and never have been, a federalist. I would not pursue a united states of Europe. It is social media stuff to start throwing in that kind of thing when we are in the middle of a serious parliamentary debate.
When the public were invited to vote in a referendum, they were invited to take back control, which was not defined. It was mainly about the borders and about the 70 million Turks and all the rest of it. They were told in the campaign that our trade with the European Union would not be affected in any way. Indeed, that is still being held out as a prospect by the Brexit Secretary and others, who seem to believe that they will get unfettered trade without any of the obligations.
The discussions we have had in Committee on previous days about the details of what “single market” and “customs union” mean, and so on, would have been a mystery to anybody whose knowledge of the subject is confined to the arguments reported in the national media on both sides. Those arguments are largely rubbish, and it is now for this House to turn to the real world and decide in detail what we will do.
The Father of the House is right that there will be a qualified majority vote on the withdrawal agreement. That agreement will not go to each individual Parliament in the same way that the actual trade agreement will. Does he share the concerns of many people, as that now dawns upon them? They had thought that this place would have some sort of say on the trade deal—the actual final relationship that we will have with the European Union—but, actually, we will have no such say because the deal will not be finalised until after we have left the European Union. Does he agree that that is now concerning many citizens across the length and breadth of this land who did indeed apparently vote to take back control?
I agree entirely. My right hon. Friend eloquently underlines the point that the right hon. Member for Normanton, Pontefract and Castleford raised and that I am trying to make. We must have a meaningful vote before the final trade deal—indeed, the whole deal—is agreed by the Government.
Let me try to lower the temperature by going back, as I rarely do, to reminisce for a moment.
My right hon. and learned Friend and, I believe, my right hon. and learned Friend Mr Grieve, both concede that amendment 7, at this crucial moment, is defective and would not work for a variety of reasons. I have indulged what my right hon. and learned Friend Mr Clarke has said about scrutiny and responsibility and the rest, but does he agree that it is not appropriate to press such an amendment to a vote when, in fact, it would make a nonsense of itself? It would be a meaningless vote about a meaningful vote.
No doubt my hon. Friend will catch your eye, Dame Rosie, when he will be able to explain why he thinks the amendment is technically defective, but this is the kind of argument we have had against every proposition that has been put forward throughout the passage of the Bill. I heard the Prime Minister personally promise us a meaningful vote and then go on to explain how the Bill would have to be used to make statutory instruments; so we are talking about the very wide powers in the Bill being used probably even before the end of the article 50 period—I think that is what she said. This amendment would prevent that; it would prevent those powers from being used until a statute has been passed by this House confirming its approval and also giving legal effect to whatever final agreement has been arrived at. I bow to my hon. Friend’s legal skill—he was indeed in parliamentary law when he practised—but I cannot for the life of me see why this is defective.
I was about to end with a little reminiscing. I do not normally do that, because it is the last thing a veteran should do, but I keep being reminded of the European Communities Act 1972, the mirror image of which we are now producing. I hope the Committee will forgive me for looking back a little to think about what the reaction of that House of Commons, a much more powerful House of Commons than the present one, would have been if the Government of the day had come along with the kind of propositions we keep facing about the role of Parliament. The reaction across the House to being told there was going to be no parliamentary vote and it was all a matter of the royal prerogative would have been unrepeatable, from Enoch Powell to Michael Foot.
The key vote at that time was a vote in principle on the agreement that had been reached—it was different then, because we were applying for membership. The first thing was to get parliamentary approval. No one said that it was going to be non-binding or just a resolution, but there was a key resolution that determined whether we could go ahead at all. Some Conservatives voted against it, but a much bigger number of Labour Members voted in favour, giving it a very satisfactory majority. Then the whole process was subjected to debate on a Bill, at much greater length and in much greater detail than anything this House of Commons will ever be allowed, before there was the slightest prospect of the British Government thinking they would be able to ratify the agreement and commit us to European membership.
The current situation is a sad contrast with all that in many ways. It comes at a time when there is the utmost confusion about what our policy is, as we seek whatever destination we are eventually going to take when we reach agreement. Either new clause 3 or amendment 7 is the absolute minimum the Committee should be passing at this stage, in order to make it clear that binding commitments that affect future generations, changing our law in substantial ways, can be made only with the proper approval of both Houses of Parliament, following the full procedures that are necessary for statutory law.
It is a pleasure, once again, to serve under your chairmanship, Dame Rosie, just as it is to follow Mr Clarke, the Father of the House, who gave an informed and powerful speech that we would do well to take on board as we proceed in today’s debate.
I rise to speak to new clause 66 and amendments 30, 27 and 29, which stand in my name and those of my right hon. and hon. Friends. I also intend to speak to amendment 28 and to the wider question of whether clause 9 should stand part of the Bill. In its policy impact, clause 9 is arguably the most important in the Bill and, taken together, clauses 9 and 17 give rise to a very wide range of interlocking issues. For the purposes of clarity, I intend to speak first to amendments 30, 27 and 28, which relate to the purpose, scope and limits of clause 9 and whether it should stand part of the Bill. I will then turn to amendment 29, which relates to the purpose, scope and limits of clause 17. I will finish by dealing with new clause 66 and the thorny issue of Parliament’s role in approving the final terms of the UK’s exit from the EU and any associated transitional arrangements that might be agreed.
I turn first to the purpose, scope and limits of clause 9. The Government have argued that the clause 9 power is necessary in order that they have sufficient flexibility to give effect to whatever is in the withdrawal agreement and to ensure that there are no holes in the statute book after exit day. The withdrawal agreement, it should be noted, is defined in clause 14 as an agreement, whether or not ratified, agreed with the EU under article 50, meaning that the powers in clause 9 could be used before a withdrawal agreement is ratified but not, as the clause makes clear, after exit day for the purposes of the Bill, because the power will expire at that point.
In the light of the Secretary of State’s announcement on
Let me set out why we believe that to be the case. In that announcement on
In legal terms, any transitional arrangements agreed to could not bridge a post-exit gap, because even if some elements of the withdrawal agreement come into effect at the end of any such period, an agreement on transition itself will have had to have been given legal effect in the UK by means of the very same primary legislation, namely the withdrawal agreement and implementation Bill. As such, unless the Government are proposing to begin the process of implementing the withdrawal agreement and any agreed transitional arrangements immediately after the final terms of such an agreement are reached, but pre-ratification, by means of secondary legislation in this Bill—a point made earlier by Sir Oliver Heald, who is not in his place—a course of action for which there is no justification, given that the phase 1 joint report published last week sets out in black and white the intention to provide a specified period to approve the agreement and transitional arrangements in accordance with our own constitutional procedures and to prepare the statute book in accordance with that agreement, there is simply no need for the powers provided for by clause 9, including the broad power under that clause to amend the Bill itself.
I am listening carefully to what the hon. Gentleman is saying, but is it really that unreasonable that the Government might need to avail themselves of these powers in clause 9 while the withdrawal and implementation Bill is proceeding through the House of Commons? If the timetable is compressed, that Bill would not be on the statute book and the powers there would not be available. So clause 9 is necessary for that purpose. Of course the withdrawal and implementation Bill could circumscribe the powers in clause 9 and indeed close them off once that Bill is on the statute book.
The hon. Gentleman has pre-empted a point I was going to come to. In the scenario he gives, there is no need for the timetable necessarily to be compressed. If it were squeezed, what would that say about the role that Parliament will have on the withdrawal agreement and implementation Bill? In his scenario, there would also be no need for the secondary legislation in this Bill, which could be included in a similar form in the withdrawal agreement and implementation Bill, when we would have a better idea about what it will be needed for and can more adequately circumscribe its scope. As for this idea that we have a withdrawal agreement and implementation Bill making its way through this House at the same time as secondary legislation implementing elements of that agreement hang over this place, such an approach would create serious confusion.
Has it come to the hon. Gentleman’s attention that, were the Bill passed without either amendment 7 or amendment 4 being made, and were there then a change of Government to one who believe in a hard Brexit, we could leave the European Union on absolutely no agreement, with no deal and no recourse whatever to this Parliament to have any say in that, because the Bill is completely silent about what would happen in the event of no deal?
The right hon. Lady makes a very important point. Although I concede that amendment 7 provides for an additional check because it requires primary legislation, our new clause 66 highlights an important point: we would wish to bind the Government so that Parliament would get a say even in the event of a no-deal scenario. I shall return to that point later.
The hon. Gentleman is concerned about the potential for a compressed timetable and the consequences of what may flow from that, but is that not actually following from the will and vote of Parliament? Parliament passed into law article 50, which it agreed to by bringing the Lisbon treaty into law, so this is the natural consequence of what Parliament itself has determined.
The hon. Gentleman is right that the European Union (Notification of Withdrawal) Act 2017 and the article 50 notification gave effect to their own timetable. That is why it is so important that we have transitional arrangements on current terms that allow us flexibility to negotiate the final deal. I will return to this point later, but there is no way that, before we leave in March 2019, we will have agreed the future relationship. We will have agreed heads of terms at best.
If it is all right, I am going to make a bit of progress because many Members wish to speak.
As I have said, I do not think there is a need for the powers in clause 9 because secondary legislation of a similar type could be included in the withdrawal agreement and implementation Bill. Why the need for such powers? We do not think there is any justification for them. I look forward to hearing the Minister’s justification for why the clause needs to stand part of the Bill but, unless amendment 7, tabled by Mr Grieve, is passed, the Opposition will vote for the clause to be struck from the Bill.
If clause 9 remains part of the Bill at the end of the parliamentary process, its constitutional potency and scope must be highly circumscribed. I do not intend to dwell extensively on what limits should be placed on the clause 9 power because, in general, the same arguments apply as those that I set out at length in the Committee’s deliberations on clause 7 yesterday. I will say, though, that amendment 27 to clause 9, similar to our amendment 25 to clause 7, would constrain the capacity of the powers in clause 9 to reduce rights or protections.
The powers in clause 9 are different from the powers in clause 7 in a particular way: namely, the extraordinarily wide power explicitly provided for by clause 9(2) gives Ministers the power by regulation to modify—a term that clause 14 makes clear covers amendment and repeal—the Bill itself once enacted. As my hon. Friend Chris Bryant pointed out on Second Reading, there is no example throughout the history of the 20th century of a Bill that has ever sought to do that—not in time of war and not in time of civil emergency. In fact—this is a point that my hon. Friend continues to make, and should—every single emergency powers Act has specified that there should not be a power in such legislation for Ministers to alter primary legislation. We do not believe the power is justified, and amendment 30 would limit the potency of the delegated powers in clause 9 by preventing them from being used to amend or repeal the Act itself.
Let me turn briefly to the purpose, scope and limits of clause 17, which gives powers to Ministers to make any consequential provisions that they consider appropriate in consequence of the Act and to make any transitional provisions that might be needed as a result of the Bill coming into force. In contrast to our position on clause 9, we acknowledge that there is an established precedent with regard to consequential and transitional provisions, so we will not be voting against clause 17 standing part of the Bill, but it must be circumscribed.
A clause as widely drawn as clause 17—it is arguably the most widely drawn of all—set in the context of a Bill of such constitutional and legal significance that it covers almost every element of the UK’s withdrawal from the EU and, it could be argued, nearly every facet of our national life, means that the power to make consequential provisions under clause 17 is not as tightly limited as it might be in other pieces of legislation. As such, it inevitably throws up the possibility that the powers in subsections (1), (2) and (3) of clause 17 could be used to make changes to vast swathes of secondary and primary legislation, including legislation in this Session up to May 2019.
When he responds, the Minister will no doubt cite other statutes that provide for not dissimilar powers, but having looked closely at a fair number of them, I am not convinced that any are so widely drawn as this one, and none are contained in legislation as constitutionally significant as this Bill. The Hansard Society was right to refer to clause 17 as a “legislative blank cheque” for the Government, and the power must be restricted. Amendment 29 would achieve that aim by removing subsections (1), (2) and (3) of clause 17. If the Government believe that that is the wrong way to restrict the sweeping powers in the clause, they can of course come forward with their own suggestions, but the principle of circumscribing the powers in the clause must be accepted.
I shall finish by dealing with new clause 66 and Parliament’s role in approving the final terms of the UK’s exit from the EU and any associated transitional arrangements that might be agreed with the EU27. Labour has argued from the outset of this process that it is essential for Parliament to have a say on the final terms of our withdrawal from the EU. It is worth bearing in mind that the final terms of the UK’s withdrawal from the EU will contain the agreement the Government reached last week, hopefully an agreement on transitional arrangements, and also a framework declaration covering trade, security, foreign affairs, climate and all other areas of co-operation. That declaration may be extensive and it may be detailed, but it will not be, as Ministers know full well, an agreed comprehensive preferential trade deal.
If it is concluded at all, such a deal, alongside other agreements that cover different aspects of the relationship, will have to be concluded after the UK has left the EU and the withdrawal agreement has already been ratified, as this morning’s written statement from the Secretary of State makes crystal clear. During the passage of the Bill on the triggering of article 50, the Government made a welcome concession from the Dispatch Box to the effect that both Houses would get a vote on a motion on the final draft withdrawal agreement as soon as possible after it has been reached, and before the European Parliament votes on it. The Secretary of State’s written statement, published this morning, has been spun as a further concession, but in some respects it could be read as rolling back on the earlier concession.
Will the Minister confirm that it remains the Government’s position that Parliament will get a vote on the final terms of the UK’s withdrawal from the EU, before the European Parliament debates and votes on the final agreement? There is no reiteration of that point in the Secretary of State’s written statement. Will he also confirm that, in addition to a vote on the terms of withdrawal, Parliament will get a meaningful vote on the one or more agreements the Government hope to conclude relating to the future relationship, not merely a vote on the framework declaration as part of the article 50 process? As my hon. Friend the Member for Rhondda has mentioned, the process under the Constitutional Reform and Governance Act 2010 would not entail a debate or vote in Parliament on the terms of the future relationship.
The Secretary of State’s written statement aside, the Government must go further and put a vote on the final terms of the UK’s withdrawal on the face of the Bill, and they must ensure that that vote is truly meaningful. We have already debated what “meaningful” means—I fear that Members are sometimes talking past each other—and there is a variety of techniques that one might use to make a vote meaningful. Nevertheless, a meaningful vote must essentially be one on whether the House approves or disapproves of the final terms or, indeed, the lack of any withdrawal agreement, and it must happen before we leave the EU. The latter is something else that today’s written statement singularly fails to mention. It cannot be a “take it or leave it” vote and, as Anna Soubry said, it must allow a change of approach or of drift.
I just want to clarify whether the hon. Gentleman means what I think he means by what he just said. Does he mean that if the House did not approve a withdrawal agreement, his view is that the Government should have to ask for an indefinite extension of article 50 until the House has approved a set-up that it finds acceptable?
I do not think that is necessarily the case, for several reasons. First, there is no reason why a withdrawal agreement cannot be reached, perhaps even sooner than October 2018—
I think it will take a long time. The Minister can confirm this, but I assume the Government would be pleased to conclude the withdrawal agreement before October 2018, if possible. However, there are several things that might happen, one of which is that the Government go back to the negotiating table and try to improve on the deal. I cannot see what is unreasonable about filling in the gaps or asking for revisions, were that the expressed will of the House.
I am grateful to the hon. Gentleman for giving way yet again. I think that he has just confirmed not that it would necessarily follow that the Government would have to extend indefinitely, but that it would be possible that the Government, in his view, should have to extend indefinitely because this House had not agreed to the withdrawal agreement. In other words, he is saying, is he not, that, if this House does not approve the terms on which we leave, until and unless it approves the terms on which we leave, we should not leave. Is he saying that, or not?
What I am saying is that there is any number of options that might happen, but bear in mind there is a period after October 2018 for the Government to return to the negotiating table and seek to revise or improve the terms. It does not necessarily mean an extension of article 50—I know that the right hon. Gentleman is trying to draw me down that path.
I wish to make a little progress.
That is why we tabled new clause 66, which would guarantee, by means of prescribing when exit day for the purposes of this Bill can be appointed, that both Houses have a meaningful vote on the terms of the UK’s withdrawal from the EU and, just as critically, a vote in the event that no such agreement is reached and the Government are determined to take us out of the EU without a deal—a catastrophic scenario that would result in legal chaos, significant damage to our economy, the erection of a hard border in Northern Ireland and serious harm to Britain’s standing in the world. We have consistently called for the Government to make it clear that no deal is not a viable outcome.
In the event of a no deal, people are concerned about falling into World Trade Organisation rules and tariffs, but will my hon. Friend confirm that, of course, the WTO does not cover services, which are the majority—in fact, 80%—of our exports and which require intricate, detailed negotiations? In the case of a car, two thirds of it are now services and often parts of the car go across borders. Therefore, does he not accept that having no deal would not be a disaster—it would be a catastrophe?
I agree with my hon. Friend’s point about services. I say to all hon. Members who are happy to contemplate a scenario in which the Government walk away from the negotiations and this House is merely a spectator in that outcome, that that is not acceptable and this House should not accept it.
I will make some progress, I am afraid, because a number of hon. Members wish to speak. Perhaps my hon. Friend Kate Hoey will do so.
New clause 66 would ensure that there is a vote on a motion, not just in the event of a withdrawal agreement being concluded, but, crucially, when no such deal has been concluded, should that be the case. That outcome appears less likely following the agreement the Government reached last week and the clarification that the default position in the event of no deal will be regulatory alignment, but it remains a possibility, and Parliament must have a say.
As I have said, there are many, many ways of ensuring that Parliament has a meaningful vote. Amendment 7, tabled by Mr Grieve, is very well drafted. I do not think that it is deficient. We would definitely support it and we would not press new clause 66 if he pressed it to a vote.
I am very, very pleased to hear that. We will support the right hon. and learned Gentleman and the amendment in that eventuality.
I will conclude by saying that, subject to the kind of constraint that would be put in place if amendment 7 were incorporated into the Bill, we remain of the view that the power to appoint an exit day for the purposes of the Bill should be placed in the hands of Parliament, not Ministers, and also that the flexibility inherent in clause 14 with regard to exit day should be retained, because it is essential to finalising in some scenarios a withdrawal agreement and any transitional arrangements that need to be agreed to. We need only look at the mess last week to justify the need for such flexibility. As such, we believe that amendments 381 and 382 tabled by the Government with the aim of putting a specified exit date, and indeed time, in the Bill are an ill-conceived and unnecessary gimmick and on that basis we intend to oppose them if they are pushed to a vote.
This whole debate is about whether right hon. and hon. Members are content for Parliament to be a spectator, a passive observer, of one of the most important decisions that has faced our country in generations. Parliament must have a grip on the process, which is why we have tabled our amendments and new clauses.
I am most grateful to have the opportunity to participate in this debate and to follow Matthew Pennycook. I agreed with virtually every word that he said.
In speaking to amendment 7, in the name of my hon. Friends, myself and other hon. Members, I am conscious that it has taken on a life of its own. When the Committee stage of the Bill started, it was my intention—and I hope one that I have observed and honoured throughout—to try to approach the amendments that I tabled in the spirit in which they are intended, which is to try to improve difficult legislation while entirely recognising the many challenges that the Government face. Brexit is full of risk and full of complexity—legal and otherwise—and the Government are entitled to my support, wherever possible, to carry Brexit out as smoothly as they can and with the least impact on the well-being of the citizens of our country. That has been my aim throughout.
I very much regret that—as often tends to happen in these matters—while some sessions in Committee have led to sensible amendment and the Government considering matters, or going away to look again and making some helpful suggestions, in the case of amendment 7 we seem to have run out of road. What happens in those circumstances, I regret to say, is that all rational discourse starts to evaporate. The purpose of the amendment, the nature of it, is entirely lost in a confrontation in which it is suggested that the underlying purpose is the sabotage of the will of the people, which it most manifestly is not. That is then followed by a hurling of public abuse; large numbers of people telling one that one is a traitor; and, I regret to say, some of one’s hon. and right hon. Friends saying slightly startling things. My right hon. Friend Mr Duncan Smith, for example, said that I am grandstanding, when I do not remember ever having suggested such a thing to him about the way that he has expressed his views on Europe at any time in his career—including, I might add, when I tried to be a loyal member of his team when he was leader of my own party.
My right hon. and learned Friend will know that I have never participated in any of that sort of language. May I gently put it to him that amendment 7 leaves open at least the possibility that, given that the EU does not want any member to leave and that there is therefore no incentive for it to negotiate a good deal that would be acceptable to this Parliament, we could find ourselves in a permanent state of limbo, deadlocked in unproductive negotiations?
I note what my hon. Friend has said and I am very grateful to him for the way in which he put it, but I happen to disagree with him. If he listens to me he will understand why I think that I am right on that point.
The consequence is that we completely lose sight of what the key issues are, and if I may say so before I move on, that matters a lot, because in the course of this, we also lose sight of the fact that we are the Parliament of a deeply divided country on this issue. When I go and lecture to sixth-formers occasionally and talk to them, I point out that the parliamentary process is not just about the imposition of the will of the majority on the minority; it is the process by which we obtain consent for what the majority chooses to do.
The difficulty with this referendum is that, having invoked the public will, which, I regret to say, is not entirely tempered in its expressions of view by some of the courtesies that we extend to each other here, we run the risk of losing sight of the fact that 48% of the electorate did not wish for the policy that we are currently pursuing and have deep concerns about, not trying to reverse it, but the extent to which it will have an adverse impact on their well-being, and request us as a Parliament to pay as much attention to what they are saying as we undoubtedly have to do to those who voted in the referendum and said that they wanted to leave. The most worrying aspect of the debate, as it has progressed, is how we become polarised and so fixated on ends that we fail completely to look at means. We look at the top of the mountain, but not at where we are going to put our foot next. As a consequence, we run serious risks of badly letting them down—all of them, collectively—by enacting bad legislation and taking very foolish decisions.
Of course, when this confrontation comes along, the negotiations immediately stop, the conversation ceases, the Government’s steamroller is invoked, and the atmosphere can suddenly get really quite unpleasant; and I regret it. As a consequence—I will come back to this in a moment—I have to tell my hon. Friends on the Treasury Bench that I think they have lost a series of opportunities in the dialogue we have had on this to come to a sensible outcome. With that, I turn to the issue that is, in truth, under debate.
Is not the advantage of the right hon. and learned Gentleman’s very helpful amendment that it would give certainty? It would nail down, in black and white, what we have agreed and would place a legal responsibility on the Government. We would then avoid a situation whereby what people think has been agreed simply becomes a statement of intent within a matter of hours and days.
I agree with the hon. Gentleman. I hope that I will be able to develop some of those points in a moment.
As was rightly said by my right hon. and learned Friend Mr Clarke, the Government had a notion when this debate started that it was possible to pull out of the European Union by use of the royal prerogative. Fortunately, time, common sense, debate and a small amount of judicial intervention has pointed out that that is not possible. As a consequence, my hon. Friends on the Treasury Bench have correctly begun to understand that in fact there has to be a proper process. I appreciate the points that have been made about a meaningful vote and how we can actually get that in the context of Brexit; it is a real, live issue. Nevertheless, I greatly welcome the written ministerial statement, which sets out what appears to be a constitutionally tenable process for Parliament approving or considering the deal by motion, and then moving on to implement the deal by primary legislation.
Of course, the Government know that they must proceed by primary legislation because, in view of the comments during the Miller case, it is blindingly apparent that there must be a serious risk of legal uncertainty if anything other than a statute were to be used to take us out of the EU at the end. That is the last thing that my right hon. Friends on the Treasury Bench should want, because that will cause even more trouble and difficulty than they already have in the challenges they have to face.
I hope that my right hon. and learned Friend will forgive me if I appear pedantic, but does not this Bill and the enactment of article 50 take us out of the European Union at the end, whereas the withdrawal agreement and implementation Bill legislate for the consequences?
Yes. If, indeed, we were leaving with nothing further to do, that might be a good point. But it seems to be a pretty universal view, even on the Government Benches—although this perhaps does not apply to my hon. Friend—that simply leaving to jump off the top of the tower block is not the best thing to do. Therefore, there will need to be primary legislation to implement the undoubted new constitutional order that we will have after
May I just make a tiny bit more progress?
As the Government’s position has shifted, they have come up with a written ministerial statement, which seems accurately to reflect the right direction of travel. But the difficulty is that clause 9 is entirely incompatible with what the Government have set out.
I happen to agree with my right hon. and learned Friend that it would be undesirable for us to leave without an agreement. Indeed, I think that the Government agree with that. But I will go back to the point made by my hon. Friend Mr Rees-Mogg a moment ago. Does my right hon. and learned Friend agree that, in the event that it were not possible to reach a further agreement, it would then be the case that the actions of Parliament already taken—including in triggering article 50—would constitute a proper answer to the Supreme Court’s point that Parliament, and Parliament alone, can remove us from the EU?
Yes, I think I agree with my right hon. Friend that the action of Parliament in triggering article 50 would do that. But it is not, I think, the intention of the Government to do any such thing, and never has been. Indeed, if it is the intention of the Government to do such a thing, I hope very much that they will tell me as soon as possible, because I think I might be withdrawing my support from them.
Is not the point that, everything else being equal, even if nothing else happens, article 50 has been triggered so we are leaving the European Union on a set date, unless 27 other countries decide to extend the date? Therefore, this argument is about the UK’s internal process. It is not a question of the EU or anyone else holding things up.
There are a series of processes. I do not wish to get too diverted from my main point. We are intending, and will require, a further statute in order to achieve what the Government have set out. I hope very much that we do not leave with a no deal on anything, because we would not be able to fly off to Rome on the day after, we would have no security co-operation and we would, indeed, be mired in complete and utter chaos.
The reality is that clause 9 is incompatible with the programme that the Government have set out. At the time that clause 9 was inserted, I think that the Government had not yet fully worked out the implications of how withdrawal had to take place.
In a moment. I do not wish to take up too much of the Committee’s time.
My point brings me to the specifics of clause 9, which is an extraordinary and wide power to remove us from the EU by statutory instrument, and moreover—this is the most telling point—to ask the House to give the Government effectively a blank cheque to draft statutory instruments to achieve something when at the moment we do not know what that is.
I am listening very carefully, but clause 9 is not about implementing our leaving the European Union; it is about implementing a withdrawal agreement. My right hon. and learned Friend Mr Clarke did not vote for article 50, but my right hon. and learned Friend Mr Grieve did. That is when he voted to leave the European Union and that is decided, so he is incorrect to say that clause 9 is deciding when or how we leave the European Union.
If I may say so, I think my hon. Friend has misunderstood what I said. The fact is that clause 9 provides a power, exercisable once this Bill comes into force before exit day, to implement something when we do not at present know what that is. Therefore, it is a very strange thing to ask Parliament to sign off.
Is not the supreme irony the fact that clause 9 is actually the child of article 50 of the Lisbon treaty, which the Government are now supporting? This provision is the Lisbon treaty timetable. It is not in any way trying to give power or control back to this House to amend that in any way or to ensure that the UK leaves the European Union at the time that is fortuitous. The UK is just accepting what is in the Lisbon treaty and the Government have welded themselves to that very idea.
The hon. Gentleman makes a good point.
Ultimately, the centre of this point is that we are being asked to give the Government a power that can be exercised on something, but we do not know what that something is. Logically, the moment to make the statutory instruments to enact our withdrawal would come when we have this further statute—whatever it happens to be called—and have debated it in this House. We will then have structured the powers conferred by statutory instrument to achieve what Parliament wants and thinks is necessary to carry out withdrawal. That is the point, and pre-empting matters in this fashion is odd. Indeed, it is so odd that I heard one Minister—I will not reveal who—informally saying that they questioned whether the clause 9 power was in fact still needed, in view of how the Government were progressing this matter.
In a moment.
On my key issue and what I was trying to tease out in tabling amendment 7, I could, I suppose, have simply said that I will not support clause 9. Indeed, if my amendment is not accepted, I am afraid I shall be voting against clause 9 this evening—I have no option—but rather than do that, the purpose of my amendment is to try to explore what it is that the Government want clause 9 to do that, in fact, we should not be doing when we enact the legislation at the end.
It is for the Government, in those circumstances, to explain themselves; it is not for Parliament to simply roll over and accept something because the Government say that that is what we should do. Indeed, if we all get told that we must support the Government out of loyalty because to do otherwise would undermine the Prime Minister—I think that is cuckoo, for the reasons given by Yvette Cooper—we need to know why.
Last week, I engaged in a whole series of dialogues with the Government, trying to understand what was bothering them. At one point, I thought we might be getting to the point where we would reach an agreement that some power might be needed in the Bill before we came to the final Bill, although I will come back to that in a moment. It started to dawn on me that one possibility was that this power might be exercisable, but only provided it could not be used to bring anything into force—we might lay some statutory instruments, but they could not be brought into force in any way until the end statute had been passed.
That is where I thought we might be—and then everything closed down, and I am none the wiser why the Government need this power, except that I note that a journalist who seemed to have been speaking to a briefing was told it might be required to effect the registration of EU citizens. I thought to myself, “I thought we were going to have an immigration Act to do that.” So I am still at this moment—this afternoon—absolutely at sea about why this power is needed. If the Government cannot make a case for this power, it should not be here.
Even at this stage, I say to my right hon. and hon. Friends on the Treasury Bench, if they accept this amendment, which is absolutely central and necessary to ensuring that a power of this scope cannot be abused in a way that the House should not tolerate, and if they want to come back on Report and tidy it up because there is some adjustment or some caveat they want to put in, I will of course listen to what they want to say—my job is not to make their lives more difficult—but I am not prepared to sign away such an extensive power, when it appears to be contrary to the Government’s stated policy on how Brexit will be carried out and, in fact, surrenders without any good reason the control of this House over how the Government conduct Brexit.
If my right hon. and learned Friend’s version of what our vote would be were to prevail, rather than the Government’s version, what would happen if, close to our leaving date, Parliament voted against any agreement there might have been and against no deal?
Ultimately, as my right hon. Friend knows, this Parliament is sovereign, although its sovereignty does not extend to concluding agreements with other parties in international relations that the Government do not wish to adhere to or sign up to. I have no idea what the circumstances are going to be in 12 months’ time. I agree entirely with the hon. Member for Greenwich and Woolwich: we are dealing with a whole series of hypothetical questions. I get a bit fed up when I keep on being asked, “What is it? Surely, it is a choice between the deal on offer and no deal.” I do not know. There is no way that any of us can know, and that is why the process matters so much. If we get the process right, we will answer correctly each question as and when it arises. Far from that hurting or damaging the Government, it will enhance their power. To come back to the point I made in an intervention, it will convey an impression of purpose and method to our EU partners in negotiation, whereas, at the moment, the major thing that has been undermining our negotiations is the impression of chaos in our procedure and our aims.
I am extremely intrigued by the line that my right hon. and learned Friend has taken, with which I largely agree in relation not to the substance, but to the deficiencies he now seems to have accepted could, in some shape or other, be tidied up, as he put it, on Report if we were to get to that unfortunate situation. I simply ask him: is he able to elucidate how his amendment would actually work in practice?
I have been pleading with the Government throughout the past four weeks, pointing out to them that this is a really important amendment, and asking them please to respond to it. I have asked them what alternative they might have that could persuade me that they had a working proposal that should command the approval of the House and my own approval. I have been doing that repeatedly, and I was striving to achieve those things last week, but the blunt reality is—I am sorry to have to say this to the Committee—that I have been left in the lurch as a Back Bencher trying to improve this legislation, because silence has fallen. There has simply not been a credible explanation. The last explanation was, “Here is your written ministerial statement. That ought to be enough for you. In loyalty, you should now support the Government.” However, that does not answer the question.
Has my right hon. and learned Friend also looked at this issue: does he think that, should the Government decide that the best deal is the European Free Trade Association—we would effectively be Norway—some right hon. and hon. Government Members have worked out that, without his amendment or the new clause moved by Yvette Cooper, this country would become like Norway and go straight into EFTA, without this Parliament having a say on whether that is what leave meant?
It would indeed be a remarkable outcome. Certainly, I think that Parliament ought to have a say. Those reasons highlight the difficulty of clause 9. There are other difficulties with the Bill, but clause 9 really has it.
I want to bring my remarks to an end, and I simply say that I do want the Government to listen. The opportunity is here for them to accept the amendment and then to come back on Report and explain themselves further or to tidy the amendment up, and I will listen and try constructively to help them if, indeed, any of this power is needed, but I am not prepared to sign clause 9 off in its present form.
The one merit of amendment 7—I tailored it very carefully and I tried quite deliberately to avoid the no-deal scenario, which is a very legitimate issue, but it is not what I went for—is that I wanted to make sure that these powers could not be used to pre-empt a statute that we should probably be considering this time next year. It is plainly wrong, and if it is to be departed from, the Government have to provide a credible reason for it.
May I ask my right hon. and learned Friend about a point I am struggling with and that others may be struggling with, too? On the one hand, given that the Government have conceded that there will need to be a statute to implement any agreement, it is difficult, for me at any rate, to see what the point is of clause 9, and Parliament should not legislate in vain. That is point one. On the other hand is the key point not that we will get a vote on that statute, so does this really matter? That is the part I am struggling with, and I would very much welcome my right hon. and learned Friend’s views.
I think that this does matter. If I understand the reason why the Government want this power, it is that, at the time when we may be considering the next statute, they will also be pushing through this House statutory instruments setting up structures for our departure from the EU that may be, or that we might consider to be, at variance with what we need in the fresh statute that we are considering. I think that that is a form of constitutional chaos, actually. I cannot see how it produces any clarity at all. For that reason—a reason of good process—this is a mistaken course of action, particularly because it is not necessary.
We have heard the argument, “We’re going to run out of time in leaving the EU.” I simply repeat what I have said previously. I realise that this is hugely objected to by some of my right hon. and hon. Friends because they are so fixated on getting us out. The article 50 mechanism provides for a sensible structure to enable us to leave smoothly, yet for reasons that I do not understand, the aim of some of my right hon. and hon. Friends seems to be to mess it up as much as possible. There is the famous amendment 381, for example, which we are going to come back to next week and which I have already indicated I will not support under any circumstances whatsoever. If we actually stick to a sensible process, I say to my hon. Friend Alex Chalk, then we will get the right answers. As I say, if the Government are to justify keeping clause 9, they have to provide us with chapter and verse—and they simply have not done so. I have asked, and I have not had it.
In those circumstances, the only proper course of action—I say this with the greatest reluctance—is that I am going to have to vote for my amendment, and, if necessary, if it is not passed, I will vote against clause 9, because without my amendment, clause 9 becomes a really very worrying tool of Executive power that does not appear to have any reasonable presence in this legislation. Apart from on HS2, I do not think that I have ever rebelled against the Government in my 20 and a half years in this House. I do find it quite entertaining that some who criticise me for speaking my mind on this matter are individuals who appear to have exercised the luxury of rebellion on many, many occasions. But that said, there is a time for everybody to stand up and be counted. As Churchill said, “He is good party man—he puts the party before himself and the country before his party.” And that is what I intend to do.
Order. The Chair obviously recognises the importance of this debate. There is a very, very long list of colleagues wishing to speak, so unless colleagues keep their remarks to about seven or eight minutes, without interventions, there will be many disappointed Members.
I rise to speak to amendment 47, which stands in my name. It is a great privilege to follow Mr Grieve, who has shown great resolution, fortitude and reason in the face of unreasonable criticism. We admire him for it.
We are debating the single most important question in the Bill: how the House can exercise its view on the withdrawal agreement in a way that gives us control. “Control”—there is a word we have heard before. It resonated throughout the referendum campaign, but when Members start to argue that Parliament should have some control over this process, it seems to send shivers down Ministers’ spines.
Amendment 47 arises from an exchange that I had with the Secretary of State on Second Reading. When I asked him to give us a very simple assurance that clause 9 will not be used to implement the withdrawal agreement until Parliament has had the opportunity to vote on it, he replied:
“It seems to me to be logical”.—[Official Report,
Vol. 628, c. 354.]
What has been set out in today’s written ministerial statement appears to give that undertaking, but if that is what Ministers are prepared to do, why not put that into the Bill? I similarly welcome the Secretary of State’s announcement that there will be separate legislation to implement the withdrawal agreement, but if Ministers are prepared to give that commitment, we want to see that in the Bill, too, which is why I shall vote for amendment 7.
The question has been asked—I want to ask it, too, because it has exercised the Select Committee—“What is clause 9 now for?” It is a very simple question indeed. Timing and the order in which these things are done are absolutely crucial in this debate, and that point was made forensically and forcefully by the right hon. and learned Member for Beaconsfield. May I suggest a new principle? We often heard it said during reports back from the negotiations that nothing is agreed until everything is agreed, so I suggest that we agree that nothing should be implemented until everything is agreed.
The written ministerial statement says something interesting, and rather puzzling:
“The Bill will implement the terms of the Withdrawal Agreement in UK law…Similarly, we expect any steps taken through secondary legislation to implement any part of the Withdrawal Agreement will only be operational from the moment of exit, though preparatory provisions may be necessary in certain cases.”
My simple question for Ministers is this: secondary legislation where, and arising from what? Does this refer to clause 9, which a lot of Members think should no longer be in the Bill, or is it advance notification that there will be provision for secondary legislation under the withdrawal agreement and implementation Bill that we have been promised? We need some clarification.
“This confirms that the major policies set out in the withdrawal agreement will be directly implemented into UK law by primary legislation”.—[Official Report,
Vol. 631, c. 37.]
That is very interesting. I must confess that I did not understand the full significance at the time, so will Ministers also enlighten us on this? What are the major policies and what are the minor policies, and in which Bill, and by what means, will those minor policies be implemented?
The next issue of timing is the idea that exit day should be set as 11 o’clock in the evening of
As the Committee said in its report, the proposal would cause “significant difficulties” if the negotiations went down to the wire. Of course, we had the famous evidence from the Secretary of State in which he suggested that the negotiations might go to the 59th minute of the 11th hour, although since then there has been a certain amount of rowing back, because that would not be consistent with the pledge that we have been given. That was why the Committee said that it would not be acceptable for Parliament to be asked to vote after we had actually left the European Union. The timing of all this is absolutely fundamental to making the vote meaningful. A vote may be meaningless unless at some point in the procedure the timing ensures that it is meaningful. We have to get the order right.
Michel Barnier said at the start of the process that he wanted to bring the negotiations to an end next October. We have 11 months to go to deal with a very long list of issues that we have not even started to broach. The agreement that was reached last week, which we welcome, is the easy bit of this negotiation—the really difficult bit is about to begin. Those who had thought that leaving the European Union would be about keeping all the things they liked and getting rid of all the things they did not like are now in for a rude awakening as they come to realise that choices have consequences and trade-offs will need to be made.
Hon. Members, including Anna Soubry, have referred to the question of no deal. Without doubt, there is no majority in the House of Commons for no deal. Of course we hope that there will be a deal, because we want the best outcome for our country, but in the event that it all went wrong and Ministers came back to say, “I’m sorry, but no deal is on the horizon,” and all Parliament could do was to say, “We are going to reject this,” and be left with no other recourse, that would not constitute a meaningful vote, would it, not least because the clock would be running down?
The right hon. Gentleman is getting to the nub of the issue. If a meaningful vote, by his definition, means that Parliament should be able to say to the Government, “We don’t like the deal that you have got, and we’re not accepting no deal, so go back to the EU and negotiate another deal,” what chance does he think there is that those who do not want us to leave in the first place will ever offer a deal that this House could buy into?
The hon. Gentleman anticipates precisely the point that I was going to make—[Interruption.] I was. As we have already heard, all the Ministers and Prime Ministers who negotiate in this process will say at some point, either in the main forum or in other discussions, “I’ll never get this through my Parliament.” That is the accountability we are talking about. It is called democracy, and it is really important that Ministers, Prime Ministers and negotiators have that thought in their minds when they are negotiating on behalf of the country and the House. In such circumstances, I think the House would first want to ask why we were facing no deal, and it might well wish to give the Government fresh negotiating instructions. The House might want to tell the Government to go back in and say, “On reflection, we would like to suggest that we do the following.” There must be sufficient time for that to take place if we are going to get a reasonable deal.
Another point I want to make—I am conscious, Sir David, of what you said about the time—is that Ministers need to understand why they are having such difficulty with this fundamental debate on the Bill. It has to do with the history of the Government’s handling of the whole process. At every single stage, this House has had to demand our role and our voice. I remember the answer when people first asked what the Government’s negotiating objectives were: “Brexit means Brexit.” When a follow-up question was asked, we were told—
I am still wrestling with the concept of a red, white and blue Brexit, and I did not find it very enlightening.
The second answer was, “No running commentary,” but that eventually had to give way to the Lancaster House speech and a White Paper. Then we asked, “Will Parliament get a vote?” Almost exactly a year ago, when the Prime Minister last appeared before the Liaison Committee, I asked her that question. She was unwilling to give me a commitment on that occasion, but we all pressed, and in the end the Government conceded that there would be a vote.
We argued that there would need to be separate primary legislation to implement the withdrawal agreement, but what did the Government do? They produced this Bill, which says, “No, no. We’ll just do it all by statutory instrument.” That was until amendment 7 appeared on the horizon, at which point the Government changed their mind. If the Committee insists, as I hope it will, on amendment 7 later today, that will be because of our experience of the Government’s handling of the Bill so far. They have not acted in the spirit of seeking consensus, even though the Prime Minister said earlier that that was what she wanted to achieve.
The final point I want to make is simply this. Parliament has no intention of being a bystander in this process. We intend to be a participant, as I have said on a number of occasions, because this decision affects every part of the country, every business and every family. Today’s debate and vote are all about control, which must ultimately rest not in Ministers’ hands but in our hands. It is up to us to make sure that that happens.
Until now, with the exception of some interventions, I believe that all contributions have been, in one way or another, in support of amendment 7 and its correlative amendments. I hope, Sir David, that you will allow me a little leeway with timing to address my points, because I do believe that the debate has so far been one-sided.
I want to start by talking about the speech made by Hilary Benn, who was characteristically good-humoured and articulate, and the fine speech from the Opposition Front-Bench spokesman, Matthew Pennycook. I will then turn to amendment 7 and the speech made by my right hon. and learned Friend Mr Grieve. They all brought the cat out of the bag very well. As I will explain in a moment, I distinguish between what the Opposition are after and what my right hon. and learned Friend is after.
The right hon. Member for Leeds Central and the Opposition spokesman in effect said this. The House of Commons voted by a vast majority for a referendum, the people by a narrow majority voted to leave and the House of Commons voted by a vast majority to trigger article 50, which says:
“The Treaties shall cease to apply…from the date of…the withdrawal agreement or, failing that, two years after the notification”.
That has been accurately described by some on the EU side of the negotiations as an inevitable process to leaving, but the Opposition say that the House should be capable of telling the Government that they must seek to reverse the process by seeking—not necessarily by obtaining, because we cannot guarantee that they would obtain—
The right hon. Gentleman cannot continue to shake his head with conviction. His logic carries him there because he defines a meaningful vote as one that gives the House the capacity to reject either a deal it does not like, or the possibility of exiting with no deal. This is not a matter of opinion or value; it is a matter of logical fact. The only alternative to accepting a deal that we do not like or refusing to accept no deal is to leave the whole matter aside and not exit the Union. We either exit without a deal or we exit with a deal. If the deal is rejected but the Government are told that we cannot leave without a deal, we cannot leave.
I set out—very clearly I thought—in my speech what the other possibility is. For the avoidance of any doubt on the right hon. Gentleman’s part, I have said repeatedly in this House that we are leaving the European Union at the end of March 2019—and, indeed, I voted for the article 50 legislation. I was discussing today the terms on which we will leave. It is perfectly possible for Parliament to look at the terms and say, “We do not like them; we would like different ones,” and to give the Government different instructions, provided that there is time. That was my point.
Please, allow me to continue. It is also perfectly possible, as the right hon. Member for Leeds Central knows, because he is a fine logician, for the other side in the EU negotiations to reject such alternative terms. We therefore hit the question that he cannot evade: under those circumstances, is he or is he not hoping—the Opposition spokesman made what he was hoping for perfectly clear—that Parliament will have the right to tell the Government that they cannot leave on terms that Parliament does not accept? I really think that that is important, if we are to be honest about this, because that is what the right hon. Gentleman and the Opposition spokesman are suggesting.
The logic of the right hon. Gentleman’s position is that he wants to rule out any possibility for Parliament even to ask the Government to go back to the negotiating table. Of course he is right that, in the end, this is about a negotiation, and the 27 other European countries will have a view and such a negotiation will take place. The logic of his position, however, is that he wants to rule out any say for Parliament at all, or any attempt by Parliament to ask the Government to try to get a different or better deal, or to change the terms, and that makes absolutely no sense at all for anybody who believes in the role of Parliament.
First, the right hon. Lady has said nothing to contradict my point about what she and other Labour Members are arguing, and secondly, as a matter of fact, that is not a correct characterisation of my position. I am perfectly happy that Parliament should ask the Government, if there is time, to go back and reconsider the terms they are negotiating. I have no problem with that at all. The question is what happens if they cannot succeed in negotiating those terms and, in the end, we reach that crunch point.
May I take my right hon. Friend back to what he said about article 50? It is true that that says:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless”—
I repeat, unless—
“the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
That is exactly the point. If we are close to a deal but, for example, struggling to get the last vote through the European Parliament, the 28 countries may wish to take a little more time.
There therefore can arise circumstances in which the choice, in the end, is between accepting leaving with no deal and not accepting leaving. I continue to believe—it is important that there is honesty on this point—that Opposition Members are essentially arguing that this House should have the ability to derail the process.
I do not think that that is a fair characterisation of my argument. The right hon. Gentleman has said that there is a possibility, in certain circumstances, of sending the Government back to ask for the deal to be changed. It is possible that that might be turned down, so it is not certain, but it is possible. Does he think that that should be an option, and if so, if he votes against amendment 7, what other mechanism might we use to send the Government back to at least try to improve a deal that this House felt was sub-optimal?
I am very happy to answer that question, and it will bring me neatly on to the point I want to make about the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. The answer, of course, lies in the combination of the proceedings on the resolution that will have to be agreed by this House, during which it will be perfectly possible for this House, both in debate and in the way it votes, to tell the Government, if there is time, to go back and try again; and of the proceedings on the withdrawal and implementation Bill, during which again, if there is time, the House could reject the proposition and ask the Government to go back.
We then come to the nub of what happens if there is no time anymore because the Government cannot get a renegotiation and cannot get an agreement—a further prolongation—of the kind that my hon. Friend the Member for Chelmsford describes. The question arises of whether Opposition Front Benchers are recommending, in those circumstances, that leaving without a deal is the possibility it needs to be for article 50 and the referendum to be respected. That is a crunch question that the hon. Member for Greenwich and Woolwich cannot avoid.
I will be brief, and then leave it there, but I want to pick up on two of the right hon. Gentleman’s points. First, I think there will be time. Last week’s joint agreement makes it clear that there must be time, in accordance with our own procedures, to look at the withdrawal agreement and then ratify it.
The right hon. Gentleman said that there is a possibility, on the basis of the Government’s commitment to a motion, to send them back to renegotiate, but that is not what his Secretary of State says. The Secretary of State says of the motion it is an up/down deal, and that a no vote would be the end of it—leaving without an agreement; not going back to the negotiating table.
There is no possibility of precluding Parliament from making such a resolution one way or the other. That is up to Parliament, and it is up to the Government of the day at that point to respond as they choose. No Government would sensibly respond in the way the hon. Gentleman describes, so I do not think that that is a realistic possibility.
My right hon. Friend will be aware that all parties are aiming for next October for the negotiation of the final deal, but the Secretary of State has said that he will keep negotiating until March 2019 and that, if necessary, he will go on after that into the implementation period, so there should be time one way or another.
I agree with my hon. Friend. There may well be time; I am not in any way denying that. The point I was trying to make is that Labour Members have alleged that it is proper for Parliament to be able to have what they have described as a meaningful vote. They have made it perfectly clear that what they mean by a meaningful vote includes the ability to tell the Government that they cannot continue to leave the European Union if the terms on which they wish to leave are not acceptable to Parliament. That is a logical fact, and people can agree with it or disagree with it. I do not in any way impugn the motives of Labour Members; it is a perfectly reasonable thing for them to think. It is just that we ought to be honest about the fact that that is the proposition they are putting forward, which is in marked contrast to the point made by my right hon. and learned Friend the Member for Beaconsfield in his amendment 7.
May I suggest that amendment 7, as presently drafted—this is central to my right hon. Friend’s point—has a major deficiency, because it could leave things in a permanent state of limbo? There is no incentive on the EU’s side to help to negotiate a good deal that is acceptable to this Parliament, which means that we could be left in deadlock for a period of years. I raised that point with my right hon. and learned Friend Mr Grieve, but he did not cover it in his speech.
I am grateful to my hon. Friend for that point, which I will come back to in a moment.
In turning to amendment 7, let me start by saying something on a personal level. I have been in the House for exactly the same length of time as my right hon. and learned Friend the Member for Beaconsfield—I think we entered it on the same day, as it happens—and I have served with him in a number of capacities both in opposition and in government, and I have the highest personal regard for him. I have invariably found that when he says something he means it, and I have never found him to be one of those who plays games. Moreover, although I profoundly disagree with him about his amendment, for reasons that I will put forward, I think his motives in producing it are totally honourable and straightforward, and deserve the respect of everyone in the House of whatever persuasion they may be.
There is a reason, however, why I think the amendment is a very bad one. I want to expose an extremely important point about it, which began to come out in the remarks of my right hon. and learned Friend and others. It would not have the effect that the right hon. Member for Leeds Central or the Opposition spokesman seek: it would not actually make it impossible to continue the article 50 process and leave without an agreement. There may be some Members on either side of the House who are tempted to vote for amendment 7 on the basis that it would have such an effect, but it plainly would not.
What amendment 7 would prevent is the issuing of orders under this Bill until another Bill that the Government intend to bring forward has been enacted. If it was agreed and we had not been able to pass the withdrawal and implementation Bill, it might in certain circumstances create the inconvenience of our not being able to issue orders to implement a withdrawal agreement to which the Government had signed up. However, not being able to implement the provisions of an agreement in domestic law does not prevent us from signing and ratifying the agreement and does not prevent us from leaving the European Union. Anybody on either side of the House who imagines that amendment 7 would have the effect of creating what the right hon. Member for Leeds Central called a meaningful vote is under a severe logical illusion. It would do no such thing. The Opposition have tabled, I think, a new clause that would have the effect of giving that power to Parliament, but amendment 7 would not do it.
My right hon. Friend perfectly clearly sets out that a serious constitutional impasse is possible if this House does not pass an agreement, because article 50, even if it is delayed a bit, will eventually lead to our leaving. That assumes—he does not do so, but some of the more hard-line Eurosceptics do—that there are people in the EU who want no deal. I have never met any such person, because actually they would suffer from having no agreements on flights, security, policing and all the rest of it. As has been said, we are inevitably dealing with hypotheses and nobody, whatever their views, really has the first idea where we will be in 18 months’ time, but his suggestion is a most unlikely consequence. If this House rejected a deal, the British Government would go back and say, “We’ve got to have a better one.” I personally would guess that the other 27 nation states would reconsider and see whether they did not have to give a better one in order to the get the deal that they had already tried to sign up to.
I think that is a very possible eventuality, which takes us back to our earlier discussion. I certainly agree that if, upon a resolution, the House refused to accept the withdrawal agreement suggested by the Government and agreed by the EU, it is very likely that the Government would go back and try to renegotiate it, and it is very possible that they would succeed in doing so. I do not deny any of that. My point is that amendment 7 would not force that result, because all it would do is, under certain circumstances, stop certain kinds of orders being issued under this Bill.
I picked this amendment with some care, precisely because I wanted to avoid the suggestion that by tabling it I was trying to sabotage Brexit. I was trying to prevent the potentially abusive use of a power in clause 9 when the Government were saying that they were going to do something different. That was the purpose behind the amendment. It was also, if I might say so, to prod the Government into responding, which I very much regret they have failed to do.
I am delighted by my right hon. and learned Friend’s intervention, because I agree that he has succeeded in doing that. He has not created the so-called meaningful vote that the right hon. Member for Leeds Central and the Opposition want. He has instead pointed out an issue with the use of the order-making power in this Bill. The question is: is it a good amendment in those terms? We have accepted that it is not a question of creating or not creating a meaningful vote, to use the term used by the right hon. Member for Leeds Central, but just a question of trying to get the Bill into good order—a pursuit in which my right hon. and learned Friend the Member for Beaconsfield and I have joined on many occasions during Committee proceedings. However, I think that on this particular occasion, this particular amendment is not a particularly good way of doing that. I will explain why I think that is the case, and I hope that the Government will instead come forward with another way of achieving the same effect.
It is a very odd situation indeed to have an amendment to what will become a section of an Act that refers to another piece of primary legislation as the basis for an order-making power in the first piece of legislation. In fact I think it is virtually unprecedented.
The Bill is unprecedented, because it is asking us, in the light of what the Government themselves say they are going to do, to sanction a power that undermines a further statute that the Government intend to pass, which should be the source of power for removing us from the EU.
Now I am beginning rather to agree with my right hon. and learned Friend. Therefore, my suggestion is that if that is the purpose of his amendment, it would be far better that it come back as a Government amendment on Report that achieves that effect in a different way and directly, without the gross inelegance of referring to another piece of legislation. It should mainly limit the power in clause 9 to things that are urgent and immediate, and perhaps even specify what sorts of things they might be.
As a matter of fact, I rather share my right hon. and learned Friend’s inclination to believe that clause 9 in its present form came forward before the Government were clear about the need for the implementation and withdrawal Bill, and that Ministers and officials have so far been quite hard pressed to identify exactly which powers are required in clause 9 under the new dispensation of that forthcoming Bill. The Government therefore have a good opportunity to promise from the Dispatch Box today that they will come back on Report with an amendment that is correctly phrased in such a way as to limit the order-making power in clause 9. That would avoid the possibility—this is the point that I want to make to my right hon. and learned Friend and other hon. Friends—of suggesting that we are in any way creating a launch pad for the efforts of the right hon. Member for Leeds Central and Opposition Front Benchers to create what they call a meaningful vote, which is in fact an ability to trigger us not leaving.
There will undoubtedly be an opportunity at the end of this process, if this House were so minded, to reject a deal. I have to say—my right hon. Friend may agree with me—that ultimately the House could bring this Government down, if it had to or wanted to do so. That is our constitutional ability.
My right hon. Friend’s main point does not find favour with me, because the only way we will get something sensible on Report is by getting amendment 7 on the statute book and on the face of the Bill. I asked repeatedly for an engagement along precisely the lines that my right hon. Friend has identified, and it was consistently rejected. That is why I will vote for amendment 7, and if I may say so, I would encourage him to do likewise.
I am surprised by that, because my right hon. and learned Friend has a long and distinguished record of voting for good law. I do not think that this is good law, for the reasons I have identified. I think it really would be better if we had a correct amendment at a later stage of proceedings.
Does my right hon. Friend agree that the current plans create the risk of parallel legislation, with an Act of Parliament dealing with our withdrawal agreement going through at the same time as all sorts of orders, because there is no trigger mechanism for, or constraint on, the order-making power? Therefore, is not my right hon. and learned Friend Mr Grieve, the former Attorney General, doing the House a service by seeking to avoid the risk of parallel proceedings, which is something that this House never does?
I agree with my right hon. and learned Friend that we ought to avoid the possibility of parallel proceedings, but my suggestion would certainly achieve that. If the Government were to come forward at a later stage with an amendment that made it clear that clause 9 could be used only for urgent things of a specified kind, that would prevent the possibility of parallel proceedings.
May I suggest another way forward, which is that we agree to the amendment and then, given that this is Committee stage, the Government can go away and fine-tune it, which is what they thought it needed? They had the opportunity to the table their own amendment, but they did not see that commitment through and table one by 3 o’clock on Friday. There is another way. Let us vote on and accept the amendment today and put a meaningful vote in the Bill; and if it needs a twiddle and a tweak, we can come back on Report and I am sure we will all agree to that.
But if my right hon. Friend agrees with me that our purpose in this case is not to create a so-called meaningful vote but simply to ensure that clause 9 is not used to create parallel proceedings or to give carte blanche, it would clearly make sense for the Government to make that undertaking rather than to accept an amendment that has an unnecessary effect.
Looking at this matter independently, as one does these days, it strikes me that my right hon. Friend’s argument raises a serious question about why clause 9 needs to be in the Bill at all. We are going to have a withdrawal agreement and implementation Bill, and if the Government cannot say what it is that might be urgent, why should we have this clause at all?
Now that there is to be an implementation and withdrawal agreement Bill I do not personally yet understand the need for clause 9. However, the right way to deal with that is for the Government either to say that they will consider getting rid of clause 9 or to make the kind of restricted amendments on Report that I was describing. In any of those ways, the problem would be resolved without the need for this kind of tension, and that would surely be desirable.
I am most grateful to my right hon. Friend for giving way again. In a sense, he unmasks my strategy. I have spent the whole time trying to be sotto voce about this, trying to get some common sense into the Government, which I have been unable to do. It is for that reason that, I very much regret, there really is no alternative to amendment 7. It may be inelegant—although I do not think it is—but it does the business. It would stop the Government doing something that they should not be doing. I could not agree with him more that clause 9 could be removed entirely. It would very sensible if the Government were to do that, but if I had suggested that they would have been upset with me, and it would have made the relationship and the negotiation even harder. In the spirit of conciliation I avoided that brutality and came with something different.
Speaking personally, I do not think there would be anything very brutal about the Government deciding on Report that it would be sensible to not have clause 9 in the Bill, given that there will now be a separate piece of legislation to achieve the same effect.
I hope that means the right hon. Gentleman is now calling on the Government not to move that clause 9 stand part of the Bill, and that, if they do not do that and instead insist that clause 9 does stand part of the Bill, he will vote against it. That is the obvious logic of what he is saying.
It was with some regret that I gave way to the hon. Gentleman. I have never known him to take a position that was not partisan and slightly ludicrous, and that was a classic example. Here am I irenically trying to achieve a result that would be in the interests of the nation—good legislation that has the effect my right hon. and learned Friend the Member for Beaconsfield agrees he is trying to achieve, but which would not have the disadvantage of enabling the Opposition Front Benchers, the right hon. Member for Leeds Central and others, including Chris Bryant, to achieve the meaningful vote they want to achieve. But what does he want to do? He wants to create some trouble. Well, that is fine—that is what happens in Parliament. My suggestion, however, is not that the Government should be defeated tonight or engage in some huge reversal, but that they should make the sort of change they often make in Committee and on Report—there is, after all, much time to consider the issue on Report if necessary. I want them either to make an adjustment to clause 9 or remove it. That would overcome the difficulty without creating a platform for ending our withdrawal, which is I think the subterranean motive of many on the Opposition Benches—although not, I stress, of my right hon. and learned Friend the Member for Beaconsfield.
I am afraid I am little overwhelmed by the legal expertise all around me—I will just speak very plainly. Does my right hon. Friend not understand the difficulty and the trust issue when my right hon. and learned Friend the Member for Beaconsfield has been trying for weeks and weeks, with all good intentions, to engage the Government in this process and has failed? There comes a point when enough is enough and the voice of Parliament has a role in saying, “Put this in the Bill.”
I understand what my hon. Friend is saying, but I do not agree with her. There is a well established process for Bills in this House that includes a Report stage. If one wishes to table an amendment in the House of Commons that the Government will not accept, it is perfectly possible to do so on Report. There is no reason to force the issue in Committee. As a matter of fact, the Bill will proceed through the other place, where there will be many, many proceedings. I do not have the slightest doubt—I am sure all my hon. Friends would agree—that it will send messages back to this place, so that will give us another opportunity. I do not stress that, though; it is enough that we have the Report stage. I quite agree that there is a mischief here, but I think it is a restricted mischief and I do not think the amendment is needed to deal with it. There are other means of dealing with it. It could be done on Report, and I therefore do not think that “enough is enough” applies now.
The right hon. Gentleman has been digging a hole for himself on clause 9 quite successfully. The way he has been speaking, he seems not to understand that the amendment would only giving the House the possibility of a vote. Given the way the Brexiteers have been winning every vote, if a vote was held on a deal the only reason it would be lost is if it was a terrible deal for the UK. His argument is the equivalent of somebody setting sail on the Titanic and refusing to take any lifeboats.
It is very odd—it is as if the hon. Gentleman has not been here, but I have seen his body here all the time. The fact of the matter is that the House has had a series of votes, it is going to have a further series of votes, and then it is going to have a whole pile of votes on, inter alia, the new implementation and withdrawal Bill. In fact, my right hon. and learned Friend the Member for Beaconsfield is totally in agreement with that. There is no question of whether we give the House a vote. It is going to have a vote. The question is: what is the articulation of that with clause 9? That is what those of us who are being serious about this have been trying to discuss.
I really feel that I have come to the end of my remarks. I apologise, Sir David, that I am long past time. I hope you will accept that it is because I was answering points from other Members.
We have been discussing new clause 3 and amendment 7, which is about process in this place and, as has been said, whether there is any point in clause 9 if there is going to be a withdrawal agreement Bill. The problem is that, if clause 9 remains in the Bill, the Government will still have powers in the interim to make changes, including to the Bill itself. That means that, when the Bill completes, the Executive could simply change it in any way they wanted.
On the issue of having a vote that is meaningful, if the only option we have is the deal that comes back or no deal, frankly, that is Hobson’s choice. What should have been happening is what the Prime Minister categorically refused: a running commentary. Other Governments in Europe have sent people back to the negotiating table to try to make changes when legislation has been enacted. It is important that we remember the paucity of the debate running up to June 2016. We did not explore all the impacts. There was one debate in this Chamber on the EU and the economy. There was no debate in this Chamber on the health or social impacts, or on the loss of rights and opportunities. We did not have that. We did not air these issues—it is like having the Brexit debate now.
I want to speak to amendment 143, tabled by Caroline Lucas, which looks for a signed agreement to protect EU citizens in the UK and UK citizens in the EU.
On a point of order, Sir David. I am not able to hear what the hon. Lady is saying because behind me there seems to be an inordinate racket being made by one of my colleagues. I wonder whether it would be in order for you, Sir David, to make the point clear that this is an incredibly important debate and Members of Parliament should be able to hear what is being said.
The hon. Lady is entirely right. We should be courteous to each other. I should also add, while I am on my feet, that I said at the start that with so many people wishing to speak, if people spoke for seven or eight minutes each, everyone would be called. It is now down to three or four minutes.
Thank you, Sir David. I hope, as my party’s Front-Bench representative, and perhaps as the only SNP Member who will get to speak, that that timing does not apply to me.
I also wish to speak to amendment 241, which stands in my name and those of my colleagues, and which would preserve reciprocal healthcare and social security rights under the social security co-ordination regulations 883/2004 and 987/200, and to amendments 270 and 271, which stand in the name of my right hon. Friend Ian Blackford and which would prevent the Executive from using clauses 8 and 9 to reduce the rights of EU citizens in this country.
There was supposedly a breakthrough last week. The phase 1 agreement having been achieved, some level of agreement was meant to be fixed, but unfortunately it was then unpicked on “The Andrew Marr Show”. Moreover, we are still hearing the phrase, “No deal is better than a bad deal”, which completely undermines the agreement made last week. I make this plea: having reached a phase 1 agreement on citizens’ rights, this issue should now be taken out of the negotiations and a deal to give them security should be brought forward in the upcoming immigration Bill, and not left another year for the withdrawal agreement Bill.
It has been a year and a half already. Many Members know that my husband is German. There are many people here with EU spouses. We have friends who have been in extreme anxiety and uncertainty for a year and a half. This is not happening in March 2019; it is happening now. Ten thousand EU nationals have left the four NHSs because their children are being bullied and they feel insecure. They are going home “to be safe”. That is an appalling indictment of the current situation.
The hon. Lady is making an incredibly strong point, and one that gets lost in all this debate about article this and article that: these are real people’s lives. Does she share my anger at the way the Brexit Secretary has played fast and loose with people’s lives? He went on “The Andrew Marr Show” and completely ripped up an agreement that people thought on Friday was done and which would have a big impact on their lives.
The hon. Lady is absolutely right. Among other things, we are talking about preparing for a future deal, but the suffering and anxiety of EU nationals and EU national families in this country is already happening. They should have been given surety the morning after the vote, but instead we heard phrases such as “bargaining chips” and “playing cards” and were told they were key in the negotiations.
Would my hon. Friend agree that young early-career researchers in the academic sector, for example, are highly mobile and can easily move elsewhere? We should be rolling out the red carpet for them to make sure they stay, but instead we are treating them worse than dirt on our shoes.
I absolutely agree. As I said, we have lost 10,000 EU nationals from our health services. We have seen a greater than 90% drop in the number of EU national nurses registering to come here. It is not just about protecting the people already here. For the four NHSs across the UK, the workforce is one of their biggest issues, yet we are sending out such an unwelcoming signal that we will struggle to attract anyone else.
I agree with many of the hon. Lady’s points, but is it not vital that we send out the clear reassurance, which the Prime Minister gave at the Dispatch Box to all our NHS and care staff, that they and their families are welcome to stay, that we want them to stay and that their rights are now guaranteed?
I absolutely agree with the hon. Lady, but unfortunately it is not enough to come to the Dispatch Box every couple of months with warm words of welcome to EU staff, when in between women who are raising families here, with British partners or partners of EU origin, are being turned down for permanent residency because they have not taken out private comprehensive health insurance. We have had 100 EU nationals sent “prepare to leave” letters. Friends of ours tried to get citizenship for their three children, who were born and grew up in Scotland: the eldest and youngest were given passports; the middle child was refused. I am sorry but the experience of EU nationals on the ground over the past year and a half has been horrendous. If the phase 1 agreement last week is to mean anything, we must incorporate it into the immigration Bill to give them certainty now, instead of telling them they might have to wait another year before they find out what their future will be.
To exercise the right to live anywhere, access to healthcare and social security is crucial. It has made such a difference, not just to EU nationals here, but to our pensioners who have settled in the sunny uplands of the northern Mediterranean. What position will they be in if they cannot access healthcare? We must recognise that freedom of movement was not a one-way street; our young people and professionals have been able to take advantage of it for the past 40 years. We are taking that away from the next generation, which is something that I find terrible.
The Government say, and it is in the phase 1 agreement, that they accept keeping regulations 883 and 987, so let us bring that in. Let us get that down on paper and get it passed, because saying to EU nationals, “You’re welcome to stay, but there might be no deal, which means you’ll have no legal standing and you won’t be able to use the NHS,” is no use to anyone.
The other thing that the EU has brought us, as well as rights and opportunities, is co-operation. The agencies of which we are members are probably the prime example of that. Sadly, more than half of the EU agencies do not have a constitutional position for third countries. Twenty-one of them allow participation and 12 of those allow what is called co-operation, which does not involve payment in the way that participation would. It is therefore important that the Government utilise those and keep us in, or as close as possible to, the agencies that were bringing benefit to the UK. It is also important to recognise that this affects all constituent parts of the UK—all four nations. These decisions cannot be made by delegated legislation, down in an office, with no discussion with Parliament or the devolved nations, which will have to mitigate and face the ramifications.
With an airport and the northern air traffic control in my constituency, naturally I support amendments 245 and 246, on staying in the single European sky agreement, which is the reform of airspace, and the European common aviation agreement, which is what allowed the budget airlines to literally take off and people to travel cheaply. However, the European Aviation Safety Agency is also important, and that is a body of the EU and EFTA. It is important to recognise that there are things we can be in, there are things we cannot be in, and we lose these because we seem to have negotiated with ourselves to move to a hard Brexit instead of a soft Brexit. People here are saying , “Oh yes, this was all aired in the debate.” I remember hearing leavers saying, “Of course we won’t leave the single market. Don’t be ridiculous.” Yet that is the plan and that is where we are heading at the moment.
In relation to the points and the amendments from Mr Grieve and Hilary Benn, does my hon. Friend agree that, without the transparency of knowing what we are progressing to, many of the items that she is talking about cannot be agreed in the House? We leave ourselves open to the accusation made by Kathy Sheridan in The Irish Times this morning that the Government are
“failing to establish in advance what questions should be asked. Of utterly disdaining an alternative, unifying vision while obsessing about trade, blue passports and colonial nostalgia.”—[Interruption.]
Okay, I am just going to move swiftly on. It was a speech, so my hon. Friend has had his chance to get that in.
There are multiple agencies that are important for the nations across the UK, but my particular interest is of course health. We know that the European Medicines Agency is moving to Amsterdam, but the much bigger issue is the UK coming out of the European Medicines Agency. This is a body that has massively reduced bureaucracy, streamlined the launch of new drugs and meant that the pharmaceutical industry has to go through only one registration process for 500 million people. That is why drugs are launched in Europe at much the same time as America and about a year before Canada and Australia. Given some of what is going on in NHS England—including the budget impact assessment, which can allow expensive drugs to be delayed for three years—what I am hearing from those in the pharmaceutical industry is that they see the UK as a hostile market and that they may not come six months later or a year later. It may take longer than that because they only see the point in paying the extra cost to register when they have a chance of their drug being used in the NHS.
The hon. Lady is making an important point. Is she also mindful of the fact that, at a critical time for the future of the pharmaceuticals industry, there is currently no certainty even on cross-border production, which many of our companies are involved in, including GlaxoSmithKline in my constituency?
I agree. Processes such as quality control, batch certification and lot release must take place in the EU. Several centres in Scotland and, indeed, throughout the United Kingdom will have to move.
I must make progress. A long queue of Members are waiting to speak.
The EMA also leads on research, especially on rare and paediatric diseases. It simply is not possible for a single country to carry out such research. My amendment 351 is intended to ensure that we continue to participate in clinical trials under the clinical trials regulation that will come into effect in April, and maintaining standards of data protection is crucial to that. If we rush into a race to the bottom, we will end up as pariahs and we will simply not be able to co-operate with others.
I support amendment 300, which was tabled by Mr Vaizey and which concerns Euratom, but I want to clear up one point. The issue of access to a secure supply of medical radioisotopes was raised by the Royal College of Radiologists, but was dismissed by the Government because the isotopes are non-fissile. It is true that they are non-fissile, but we had a catastrophic shortage between 2008 and 2010 as a result of which I, as a breast cancer surgeon, could not carry out my bone scans. The new technique of sentinel node biopsy which was being rolled out had to be delayed and stalled, and I would have to choose which of my patients might have access to the one dose of technetium that we had to do a bone scan. That is why the Euratom Supply Agency set up the European Observatory on the Supply of Medical Isotopes, and it managed the situation.
We face real challenges in the coming years. The reactors that produce molybdenum, from which we get technetium, are not in the UK. We do not produce any of that stuff, and we do not yet have a replacement technique as those reactors go offline. It is important for the Government to realise that, if we are not part of the observatory, if we are not participators, the Euratom Supply Agency will have no obligation to us. It might help us, but we will be at the back of the queue, and that will affect patients.
New clause 44, tabled by my hon. and learned Friend Joanna Cherry, calls for an assessment of the impact of Brexit on health and social care and on workforces, especially social care workers. The percentage of EU nationals working in social care is even higher than the percentage in the NHS, but they will not qualify for tier 2-type visas. They are often not highly paid, but we rely on them utterly.
Staying in the single market and the customs union would solve all our problems, including the problem of the Irish border, but consideration of that is still being ruled out. I call on the Government to step back from creating all these difficulties, and reconsider the possibility of our staying in the single market and the customs union. The EU is not just about trade; it is also about rights and opportunities, and about co-operation.
I am very grateful, Mr Amess—[Hon. Members: “Sir David Amess.”] I am so sorry. I should remember that nearly everyone who is speaking in this debate has a knighthood.
I am very grateful, Sir David, for the chance to speak in this important debate. It has been extraordinarily interesting and, actually, enjoyable. I want to make a brief detour on amendment 7, because the dialogue between my right hon. Friend Sir Oliver Letwin and my right hon. and learned Friend Mr Grieve was absolutely terrific. Listening to my right hon. Friend the Member for West Dorset took me back—to a certain extent—to meetings that I had with him when I was a Minister. You could not go in and order a cup of coffee without engaging in a two-hour debate about exactly what was meant.
In the end, however, the answer emerged, and it emerged in this exchange. Notwithstanding all the technical debate, it is extremely simple. Clause 9 was written before the Government realised that they would have to put the withdrawal agreement into a statute, and now that they have to put it into a statute, both clause 9 and, potentially, amendment 7 have reached their sell-by date. The offer from my right hon. Friend the Member for West Dorset is serious and real: to come back, effectively, with a rewritten clause 9 which tells Parliament exactly what the Government need to do as we implement the withdrawal agreement in legislation. Do they need some powers—I could understand that—to do some things that are essential preparatory work? I thought my point was good enough to stimulate—
What my right hon. Friend is saying is spot-on: clause 9 gives some powers that trouble even Eurosceptics. I have never felt comfortable with the self-amending part of the Bill, and the solution advocated by my right hon. Friend, and proposed by my right hon. Friend Sir Oliver Letwin, is very attractive.
I can barely stand up again, because I am slightly overwhelmed by the outbreak of consensus.
I shall end this section of the speech with some unashamed flattery, as I look at the triumvirate of titans on the Treasury Front Bench: three Ministers for whom I have the utmost admiration, including my constituency neighbour, the Solicitor General, my hon. and learned Friend Robert Buckland. They have heard this debate, and they are thoughtful and effective Ministers and I am sure they will have taken the mood at least from a certain part of this House about the brilliant opportunity for a solution to this Gordian knot.
Before my right hon. Friend tries to urge us all into withdrawing these amendments and waiting for the Government to bring forward their own amendments on Report, let me say that we have been trying to do that through 70 hours of Committee stage. It is no good regarding the Committee stage of this House as an interesting opportunity for Members of Parliament to talk to each other and for Ministers to get up and say they will think about it; we have two days for Report and Third Reading, and the plain aim of the Government is to just enjoy going through this slightly tumultuous and interesting debate and sail on to the House of Lords with the Bill largely intact as it stands. That has been their obvious tactic from a very early stage.
I bow to my right hon. and learned Friend’s wisdom and experience on that point. I am a consensus merchant and simply thought there might be a way forward, but I totally understand that votes might have to be exercised tonight in order to stiffen the Government’s backbone to provide a solution. But nevertheless it has always been the case proposed by my right hon. and learned Friend the Member for Beaconsfield that the Government will have an opportunity on Report potentially to alter his amendment.
If they can justify it, of course.
The second part of my remarks, which will be as brief as possible because so much time has been taken up, is about amendment 300, standing in my name, which has the largest number of signatories of any amendment to this Bill. I am astonished that only four of them are Conservatives, but I think that reflects the standing in which I am held in my own party; I could not even persuade the leader of the rebel alliance, my right hon. and learned Friend the Member for Beaconsfield, to sign my Euratom amendment, and I really do not want my right hon. Friend the Member for West Dorset to talk about bad law when he comes to look at it.
The point of the amendment is simply to put the issue of Euratom under parliamentary scrutiny, and I note the comments made by Dr Whitford in her excellent speech about the importance of Euratom in our medical life, and her own real experience at the chalkface in her extraordinary work. So Euratom is not an esoteric issue; it affects us all. It has been debated in the House before and I shall not spend a lot of time talking about how extraordinarily successful our nuclear industry is. My own personal interest comes from the fact that although Culham is not in my constituency, many of my constituents work there, and it depends on Euratom. I thank the Government for last week’s announcement of £86 million of investment in Culham for two new centres of excellence for the testing of components and for fuel storage; that is a real vote of confidence in Culham.
The point, of course, about Euratom is that nobody voted to leave it. Euratom was not in the European Union Referendum Act 2015, and was not on the ballot; it falls under a separate treaty. So the British people did not have a chance to have a referendum on our membership of Euratom.
The reason we are leaving Euratom is technical. Legal advice, which we have not seen, deems Euratom to be inextricably linked to the European Union and therefore an article 15 notice would be defective if it did not include Euratom. However, the mood of the Government and, I think, the House is that we are leaving Euratom on a technicality, not because we object to being governed by Euratom. There is no mood among the general population to leave Euratom as far as I am aware, and I think that only one hon. Member has managed to stand up and say that there is a plausible reason to leave it.
The implications of leaving Euratom, some of which have already been identified the hon. Member for Central Ayrshire, also extend to our nuclear industry, which provides 20% of this country’s energy. At the moment, we simply cannot move nuclear material around unless we are members of Euratom. So when we leave Euratom, we will have to have, in effect, a Euratom-style arrangement to allow us to move goods around. “Goods” can mean a variety of things. We imagine highly radioactive canisters being moved in special trains at the dead of night, but the movement of goods also involves mundane things such as heat pumps, motors, spares and other components, all of which, because they are part of the civil nuclear ecosystem, have to be moved under the terms of these treaties.
Euratom covers not only objects but the freedom of movement of people. We depend on our membership of Euratom for a nuclear power industry, for our medical industry—isotopes have been mentioned—and for the Joint European Torus at Culham, where Britain has done extraordinarily well. Huge advantages have been made in robotics and other sciences, and there are £500 million-worth of contracts already in ITER, the successor to Culham, thanks to the expertise we have built up here.
Let me make it clear that, throughout this process of our technical move to leave Euratom, Ministers have been absolutely brilliant in engaging with me and other hon. Members who share my concerns and have similar interests. They have bent over backwards to do what they can to accommodate our concerns. Looking forward, we need Ministers to give us clarity on a number of issues. We need nuclear co-operation agreements with other countries—the United States, Canada, Australia, Japan and possibly the European Union as well—and they need to be in place by March 2019. These agreements can be complex, and they can depend on the legislation in other legislatures. For example, the US Congress would have to pass a new nuclear co-operation agreement with us. We will also need a new safeguards regime, and this will come in through the Nuclear Safeguards Bill as a contingency, although I understand that the Government might want Euratom to continue to cover the safeguarding role.
I thank the right hon. Gentleman for tabling this amendment. As he knows, the Business, Energy and Industrial Strategy Committee published a report today on our future relationship with Euratom. The cross-party Committee agreed that we needed as close a relationship as possible with Euratom, in part because of the safeguarding issue. Dr Golshan of the Office for Nuclear Regulation said in evidence to the Committee that our safeguarding would not be at Euratom standards by March 2019, notwithstanding the Nuclear Safeguards Bill that is going through Parliament. Does the right hon. Gentleman agree that until we have reached Euratom standards, we need either a transition period or a close association with Euratom to ensure that there is no deterioration in standards in our civil nuclear sector?
The hon. Lady and her Committee have published an excellent 45-page report this morning, and I read it when it was hot off the press. It makes all the points that I want to make about the need to have as close an association as possible with Euratom, particularly in regard to safeguarding. What worries me about the Office for Nuclear Regulation is that, while the will and desire are there, this is another job that cannot be done overnight. It will need to triple the number of inspectors over the next four years, for example. Training a qualified inspector takes between 12 and 18 months; it takes five years to train an unqualified one. The ONR already needs another £10 million just for recruitment and IT, not even for specialist equipment. Some people argue—in fact, I think it is in the BEIS Committee report—that the specialist equipment at Sellafield, which is currently owned by Euratom, would have to be replaced, at a cost of £150 million.
We need clarity on the nuclear co-operation agreements, clarity on the safeguarding regime and who will conduct it, and clarity on whether we will reach International Atomic Energy Agency standards, which the ONR is currently aiming for as a realistic target—Euratom’s standards are higher. We also need free movement of nuclear workers in the broadest sense, and I am not talking about nuclear scientists; I mean the people who actually build nuclear power stations. For example, I think the UK has 2,700 registered steel fixers, half of which will be needed to build Hinkley Point C. That kind of specialist construction worker will come under the category of nuclear workers. As for the future of our continued international co-operation, a particularly live issue at the moment is the extension of funding for the Joint European Torus, which is currently going through the Council for the fiscal years 2019-20, and the European Union is keen to get clarity from the Government on our intentions.
The key point about that work programme is that Austria will be taking over the presidency of the Council of the European Union next year. That is incredibly worrying and means that the timeframe to which we are working is July 2018, not later, which is one of the reasons why we need parliamentary scrutiny of what is happening.
The hon. Lady is entirely correct because Austria is an anti-nuclear state, and there is some suspicion that some difficulties may emerge if the matter is not wrapped up before the Austrian presidency.
The amendment’s purpose is to provide parliamentary scrutiny of the important process of replicating the effect of a treaty that nobody wanted to leave. My challenge to Ministers is to engage with the amendment, and I look forward to hearing from the Dispatch Box whether the amendment is acceptable or whether they have an alternative way of providing the House with a strategy. On that note, after 14 minutes, I will sit down.
Sir David—for you are indeed beknighted—it is good to take part in this debate immediately after Mr Vaizey. However, I am slightly saddened that him was so disparaging of all the Opposition Members who have signed his amendment. If we are just cast aside with such casual, reckless, gay abandon, we are never going to do that again, are we?
The British way in parliamentary matters has always been that we govern by consent, not by Government fiat, so Parliament should never be conceived of by a Government as an inconvenience that has to be avoided if possible. Parliament should be seen as an essential part of how we carry the whole nation with us. The Government should have more strength in Parliament than they do if they try to circumvent Parliament.
Getting the process right, as several hon. Members have already said, is absolutely essential. We are going to be deciding what many assume will be a long-term settlement for this country for generations to come. We cannot simply try to go ahead with a railroaded version of that settlement that only carries 52% of the country, or perhaps even less by then—who knows?—because we will in the end undermine the very institutions that people have been trying to say should be sovereign. I say to the Government that no amount of jiggery-pokery will sort things out. At the end of the day, parliamentary shenanigans will do far more harm to this country’s political institutions than we should countenance.
The Government already have phenomenal power and—I have used this figure before, but it is true—this is the first time in our history that more than half of Government Members are now either Ministers, trade envoys or Parliamentary Private Secretaries and are beholden unto the Government in some way or other. We have more Ministers than Italy, France and Germany put together, so the Government’s hold on Parliament in our system is already phenomenal, yet they have introduced clause 9, which is truly exceptional. I have tabled several amendments, which I will not address because I do not think there is any great point. The honest truth is that I would prefer to see the whole clause out of the Bill.
The moment I saw clause 9, I thought, “If there is a real reason for this, surely by now the Government would have argued why they have to have these powers.” Now the Government say a Bill will be introduced on the agreement and its implementation. If there really is a need for those powers, clause 9 should be in that Bill and not in this Bill at all.
I love all four of the Ministers sitting on the Government Front Bench to death, and obviously the safest thing to do today is for one of them to stand up—they could stand up one after another, as in “Spartacus”—and say, “We will not support this. We will not urge the Committee to consider taking on this clause as part of the Bill, because we know we do not really need it.”
People might ask, “If the Government do not really need clause 9, why does it matter if the clause is in the Bill at all?” The problem is that every single Government in the history of the world have always used every power they have to the umpteenth degree. It is a temptation, and we should take temptation out of the Government’s hands if they are not prepared to take it out of their own hands. Let us bear in mind that the Bill will allow the Government to change the Parliament Acts and the Representation of the People Acts. [Interruption.] The Minister of State, Ministry of Justice is standing up! Oh, he’s not.
Admittedly, changes to the Parliament Acts and the Representation of the People Acts by secondary legislation would have to be made via the affirmative process and there would be a vote in both Houses.
“for the purposes of implementing the withdrawal agreement”.
It is hard to see how that could change the Representation of the People Acts. The hon. Gentleman slightly overstates his case.
The hon. Gentleman entices me down the road of one of my amendments. Previous legislation allowing Governments such extensive powers, such as the Civil Contingencies Act 2004, has made it clear that, when tabling statutory instruments, Governments have to argue the case for why those statutory instruments are necessary. In this case, the Government have not even added that provision to the Bill, which is what makes me suspicious.
A doubting Thomas is a good man, but he should follow through on his doubts. I hope that means the hon. Gentleman will be joining us in the Lobby tonight, although I have a sneaking suspicion the smile that just crept across his face indicates that he has no intention of doing so.
There has been much talk about what is a meaningful vote. I read theology at university. My theology professor, John Macquarrie, was a wonderful man who had a rather strange half-American, half-Scottish accent. He was asked by a student, “What is the meaning of God?” And he answered, “You should not ask me, ‘What is the meaning of God?’ You should ask me, ‘What is the meaning of meaning?’” That is the kind of existential debate we are having today.
What does it mean to have a meaningful vote? First, I would say that the vote cannot simply be on a fait accompli. It is not meaningful to vote on something after it has already happened and it has already been decided. It cannot just be a vote on a treaty because, as I have already tried to explain, the provisions on treaties in the Constitutional Reform and Governance Act 2010 state that the Government do not have to provide for a vote on treaties, because it is not an affirmative process. They merely state that, if the House says within 21 sitting days that the treaty should not be agreed, the Government have to have another go, if they want to. That is a problematic process for us.
In addition, a treaty is unamendable. One thing everybody has been arguing in this debate is that we need to be able to send the Government back to negotiate again if we think the deal is not good enough. This cannot be simply be on a take-it-or-leave-it basis. That is what Hobson, the 17th century stable owner said: “You can either take the horse closest to the door or you will not take a horse at all.” It is like Henry Ford’s saying:
“Any customer can have a car painted any colour that he wants so long as it is black.”
My fear is that the Prime Minister will want to be a stable owner trying to persuade everybody to take the horse closest to the door, and I do not believe that will be a meaningful vote.
We have to have something that is properly amendable, so that it is effective. The Government have talked about the possibility of some form of resolution—a motion before the House. Mr Clarke said earlier, “That is a bit debatable these days, as the Government seem to be quite content to ignore any resolution of the House when they are defeated and sometimes to not even bother to turn up to vote on them.” More importantly, we would need to know whether such a motion could be amended in several different ways. Would it be susceptible to just a single amendment? What will be troubling the nation when the negotiation is completed is the detail. People will want to crawl over the endless individual details.
Does the hon. Gentleman not concede that there was a meaningful vote on
Plenty of Members have plenty of courage about their convictions and have demonstrated it effectively in recent weeks. I do not think the hon. Gentleman should be deriding others because they have chosen to take a different direction. I am not sure whether he has been here for the whole debate—he might have missed a few minutes or indeed most of the hours. He is right that I am a remainer and I would prefer the country to remain in the EU—I admit that openly—but my constituents voted to leave and the country voted to leave, and we are going to leave. But we have to make sure we take the whole country with us, and we will not do that by a parliamentary process that gives far too much power to the Government and does not allow for proper scrutiny in this House.
Will the hon. Gentleman join me in my call to the Secretary of State, which I have made in this House, to set out a timetable whereby we understand what the process is and how he conceives the process of decision making being? That would give us all some certainty about when we would have that meaningful vote and whether we could amend things.
I would love to, but the truth is that the Government do not have the foggiest idea when anything is going to happen. They have suggested that something might be available in October 2018—perhaps it will, but perhaps it will not. This reminds me of the hymn we used to sing:
“God is working his purpose out, as year succeeds to year”
The Government are trying to work out what their purpose is, day by day, hour by hour. They have no idea at the moment, which is why we have to make sure we get the process right before we engage in it; otherwise there is a danger that we will be railroaded without making proper, good decisions.
The hon. Gentleman said earlier that he was focused on getting the best possible process. Should we not be focused on getting the best possible deal in our negotiations? We know the EU does not want us to leave, so if he puts a process in place where the EU can simply knock a deal back to this Parliament, does that not give the EU the incentive to give us the worst possible deal, on the basis that we are more likely to reject it? We will simply have endless negotiations.
That is where we disagree. I believe that we will get the best possible deal only if we have the best possible process; the two go hand in hand. Indeed, if the Government introduced a Bill to implement an agreement and they started to lose votes on individual elements, they would probably then go back to Brussels and say, “You know what? I cannot get this through Parliament, so you’re going to have to give me a better deal.” At that point, I think that our colleagues and friends in other countries in Europe would improve the deal. I believe we would end up with a better deal.
I am listening to the hon. Gentleman’s argument with great interest, because I was waiting for the “or”. He has just asserted what would happen if we did not have a good deal, Parliament rejected it and the negotiators were sent back, but then what? If it is felt that the best deal has been offered, what is his fall-back procedure? We would leave with no deal whatsoever.
Obviously, if the Government cannot get their deal through Parliament, they may be in trouble. That is a certain truth. However, if the Government get nearly all their deal but key amendments are carried by the House—for instance, on immigration, the financial deal or the rights of EU citizens in this country or elsewhere—we could help to strengthen the Government’s arm, not weaken it at all. When I was Europe Minister, my experience was that when something was on the table in Brussels that I disagreed with and did not want to see implemented, the strongest argument I had with Brussels was, “I won’t be able to get that through the British Parliament.” If we have a system in which a deal does not have to go through the British Parliament in line-by-line detail, the Government will be weakened in the negotiating process.
Is not that the whole point about what happened last week? After what happened on the Monday, when things all fell apart and were ghastly, we saw an absolute desire and it was clear that everybody, including the EU, came together to make sure that our Prime Minister got a deal. Does the hon. Gentleman agree that when we talk to people, we hear that it is now absolutely clear that the leaders and all the various other people from the other EU countries accept that we are leaving? They have heavy hearts about it, but they know that we are leaving and it is now simply a question of sorting out the deal. Of course, it is not as simple as all that, but they have accepted that we are leaving. People really have to stop the conspiracy stories and the myths.
I agree. As I have said before, I also believe that there is a significant degree of agreement among all parties in this House, and probably in the House of Lords as well, about what the final agreement should look like. If the Government abandoned the strategy that they have so far adopted and decided to search for that consensus—“We’re going to try to get 650 MPs through the Division Lobby in favour of the final deal”—they would stand a better chance of getting the best deal for Parliament.
No. The hon. Gentleman can point and hail as many cabs as he wants, but I am not going to give way to him again because others wish to speak.
All too often, the Government have urged us to accept clause 9 and the related measures on the basis of trust alone. As has already been said, it is just too difficult to see how we can put that trust in their hands. For a start, they have systematically ignored resolutions of the House over the past seven years; they have regularly refused to allow annulment debates on statutory instruments so that they could be meaningful—they have refused to do that even when they have guaranteed at the Dispatch Box that they were going to do so; and they have insisted on having majorities on all Committees. I fear that if we allow the Government to have excessive powers, they will tend to use every single one of those powers. The truth is that they seem to want a carte blanche.
I wish the Government welcomed the role of Parliament in this process, but I just do not detect that. The devil will be in the detail. The Government cannot just bamboozle the people with verbiage that has absolutely no meaning whatsoever: “Brexit means Brexit”, “a red, white and blue Brexit”, “nothing is agreed until everything is agreed”, and all the rest of it. It is a denigration of the English language, let alone anything else.
What we actually need is a Bill, with words in it that have legal effect, because, in the end, this is an existential matter for Parliament. Are we really a sovereign Parliament if we surrender our power to the Government? Not really. Are we really a representative democracy if MPs are denied a truly meaningful role in the process? Not really. Are we really a United Kingdom Parliament if we carry only 52% of the country with us? Not really.
It is always a pleasure to follow Chris Bryant, who made some very serious constitutional points with great colour and eloquence. I am grateful to hon. and right hon. Members who have contributed to this debate through their various amendments and speeches. My approach over the course of my speech—I suspect that it will take me an hour to get through it—will be to take clause 9 first, and then to come on to clauses 16 and 17 as well as schedule 7.
It may be helpful to hon. Members who want to intervene to know that I will first explain the function of clause 9 and why it is necessary, and then set out some of the illustrations that Matthew Pennycook suggested were required. I will come on to talk about the limits, and then I will address the amendments, including amendment 7, which was tabled by my right hon. and learned Friend Mr Grieve. The key issue will come down to timing, so I will also touch on that, but first, let me set the scene.
Clause 9 highlights the interaction between diplomacy at the international level and the domestic legislative preparation for Brexit. The Government are committed to securing the best deal that we can with our EU partners for the whole United Kingdom against the very acute time pressure set out under the article 50 process imposed on us.
Clause 9 enables regulations to be made for the purposes of implementing the withdrawal agreement. It is now, as hon. Members have said, a supplementary provision to give us agility in the negotiations and the flexibility of legislative procedure to deliver the best deal under time pressure. The Secretary of State for Exiting the European Union announced to this House on
May I just make a little progress?
I am not sure whether every hon. Member has had a chance to read the written ministerial statement that was published today—it is entitled “Procedures for the Approval and Implementation of EU Exit Agreements”—but it is worth taking a look at it with regard to some of the concerns that have been expressed. We intend to introduce the withdrawal agreement and implementation Bill after there has been a successful vote on the final deal in Parliament. Notwithstanding that, it remains essential that clause 9 stands part of this Bill. We do not yet know the precise shape or outcome of future negotiations, and it is important that the necessary legislative mechanisms are available to us so that we fully implement the withdrawal agreement in time for the exit date.
I will make a small amount of progress but then, of course, I will take the right hon. Gentleman’s intervention.
There will be a wide range of more technical separation issues that will need to be legislated for in time for our exit on
As for how we implement such secondary legislation, clause 9—this is the crux—offers a material benefit in terms of timing. We would be able to start—not complete—laying some of the statutory instruments soon after reaching agreement with our EU friends alongside the passage of new primary legislation. It is impossible to say with 100% precision at this point all the technical regulations that will be required to implement the withdrawal agreement before the full terms have been negotiated. That is obvious, and is accepted by Members on both sides of the House. However, some regulations might be required, and some will require a lead time of several months, so we need to reserve the ability to use clause 9 as soon as practically possible after a deal has been concluded. If we waited for further primary legislation to receive Royal Assent, that might be too late and we could be too squeezed for time, even in the scenario in which we reach an agreement in October, as is our current aim.
Does the Minister recognise my point about the situation that EU nationals are in now? Will the Government consider moving their issue into the immigration Bill, which should be coming imminently, rather than leaving them in limbo for another year?
All hon. Members should heartily welcome the agreement we have reached on the principles that will protect the 3 million EU nationals in this country—we want them to stay and to know they are valued—and the 1 million British expats abroad. Of course, there is still a significant amount of detail in the withdrawal agreement that will need to be worked up, so the hon. Lady may be putting the legislative cart before the diplomatic horse. Can we at least recognise that we have made substantial progress—and substantial progress from the EU’s point of view—which is why we are proceeding to trade talks?
I will come back to the right hon. Gentleman shortly. He has been very patient and I did say that would take his amendment. Sorry, I meant that I would take his intervention, not his amendment—just teasing.
Clause 9 is not intended to be used to implement major elements of the withdrawal agreement. Its role will be to assist with making regulations to deal with the more technical separation issues that are better suited to secondary legislation. There will be a large number of such regulations and they will need to be in place in time for exit day.
The Minister said that the House would vote on a resolution. This morning’s written ministerial statement also refers to the House voting on a resolution on the final agreement. What would the Government’s response be if the House were to vote against that resolution? What would it mean for Parliament and for the country?
I will come to that. It is very clear that we would not be able to proceed with the withdrawal agreement, but that does not mean that we would stop Brexit from happening. That is set out very clearly in the written statement, which also repeats points that have been made before in statements at the Dispatch Box.
I am just going to make a bit more progress.
I will address the point raised by the Labour spokesperson, the hon. Member for Greenwich and Woolwich, because I think he was on to something regarding the need to spell out and illustrate, albeit not necessarily exhaustively, the kinds of scenarios in which clause 9 remains relevant in the light of the proposed primary legislation. Let me offer a few illustrative examples.
Clause 9 may be required to legislate for the position of ongoing administrative proceedings when we leave the EU. This is a broad basket of technical issues, including the technical aspects of ongoing proceedings on competition and anti-trust issues under regulation 1/2003, for example, which sets out the co-ordination between the Commission and national competition authorities. Another example is the ongoing procedures on concentrations between undertakings in mergers under regulation 139/2004, and the allocation of jurisdiction between the EU and national authorities. These detailed and technical issues do not need to be put on the face of a Bill, but they must be legislated for in time for exit.
Another area for which clause 9 could be used relates to the privileges and immunities afforded by the UK to the EU—its institutions, bodies and staff—post exit. Privileges and immunities are a standard feature of international law, and are generally considered necessary for the proper functioning of international organisations. Privileges and immunities for the EU are currently implemented under protocol 7 of the treaty on the functioning of the European Union. After exit, the EU will continue to require privileges and immunities to cover any functions it has, although the precise contours may differ according to the deal that we strike. Our agreement on privileges and immunities will need to be implemented in domestic legislation.
The point is that clause 9 is so widely drafted that it could apply to absolutely anything that could be linked with EU withdrawal. I am sure that the Department for Exiting the European Union has done a great deal of analysis—indeed, the Minister is showing that in his speech—of the areas that may be affected at the point of withdrawal. Surely that is the point at which the Government need to come to the House and, rather than speculating about what might be affected, actually identify that to us so that the powers can be limited precisely to those areas for which the Government need them.
I thank my hon. Friend for the constructive way she makes her point. Of course, until we have the withdrawal agreement, we will not know precisely the nature of the technical—
May I at least give the answer before my right hon. and learned Friend jumps in?
That is why the agility that clause 9 gives us is important. I do not mean to correct my hon. Friend Antoinette Sandbach in a lawyerly way, but it is not quite right to say that clause 9 can legislate for anything in the context of departing the EU. It relates only to the withdrawal agreement, and I think she said it related to withdrawing from the EU.
Another illustration of what clause 9 could be used for is the spelling out of the technical detail of how ongoing UK cases at the European Court of Justice should be handled, and how the UK courts should treat resulting judgments. Some of that might be done under this Bill, and some under the withdrawal agreement, but we will need to clarify things such as the types of cases that would be in scope and the precise procedural points in terms of whether a case could be considered to be pending, among others. Without that clarification, how such cases should be treated might not be clear. We would run the risk of legal uncertainty, as well as uncertainty for the individuals involved in those cases.
I do not want to make too much of that before my right hon. and learned Friend the Member for Beaconsfield jumps in. He is quite right—he has made this point before, and he may want to hear me out before I take his intervention—that, in 2016, there were 23 preliminary references from UK courts and just one infraction case against the UK. So we do not expect this issue to affect large numbers. None the less, for those affected, it is still important to get this right.
I want to understand this, because it is rather important. We are going to enact a withdrawal agreement Bill—I think that is what it is called. I would expect that to have statutory instrument powers—the very statutory instrument powers we can consider in relation to the scope of the withdrawal agreement when deciding what we then enact by secondary legislation to take us out. I begin to wonder whether, in fact, it is the Government’s intention not to have any statutory instruments made under that agreement at all, but to seek to make them entirely through the mechanism of clause 9 before we have had the opportunity of considering what we actually want. That is why clause 9 is, I have to say to my hon. Friend, so mischievous. While I would be prepared to listen to some great exception, abandoning the normal legislative process in this way seems to be utterly undesirable, so I would press my hon. Friend on what is going to happen with this withdrawal agreement Bill. Are we going to have secondary legislation under it?
I thank my right hon. and learned Friend. I should just say to my hon. Friend the Member for Eddisbury that I will come on to talk about the restraints on the exercise of clause 9 later. However, in relation to my right hon. and learned Friend’s point, if we waited for the withdrawal agreement Bill not just to be introduced after the withdrawal agreement has been signed but to be fully enacted—if we waited for it to complete its full passage—we would not have time to deal with the volume of technical secondary legislation that we need to put through.
No, I am going to make some progress.
I know that my right hon. and learned Friend the Member for Beaconsfield is engaging with this very seriously and constructively and that he is frustrated, but there is no getting around the timing issue that we have.
No, I am going to make some progress.
Nor is there any getting around the long tail of technical, regulatory secondary legislation that we will need to get through if we want to provide the legal certainty that will make for a smooth Brexit.
I just want to address the point made by the hon. Member for Greenwich and Woolwich about illustrations of what this power will be used for, because I hope that that will serve to assuage some of the concerns. The power could also be used to legislate, for example, for the status of goods that have been placed on the UK market at the time of our withdrawal, subject, of course, to what we agree with the EU on that. That could include a whole range of very technical, detailed measures to ensure that EU products continue to be made available in the UK, with no additional requirements on relabelling; to define what is meant by “placed on the market” for those products that benefit from the measures agreed; or to establish measures to facilitate continued oversight of those products. Again, these examples are illustrative, not exhaustive. However, I hope that I have at least addressed the kinds of cases that we are talking about, and also given an idea of the scale and volume of the technical separation issues that will need to be legislated for in time for exit day. Clause 9 will make an important contribution to a smooth Brexit in precisely those areas.
Timing is the crucial issue. Given that there are many examples of an accelerated process being used to get primary legislation through this place on many different matters, including in a single day when that has been necessary, why would it not be possible, if time was starting to run out, to have a very simple one or two-clause Bill that would do the bits of things on which the Minister needs to get agreement and to put the secondary powers in place, and therefore at least have a vote on primary legislation? Why is it not possible to do that very quickly to deal with the concerns that have been expressed?
It is just not practicable. I will come on to address the timeframe for how we are going to approach the agreement, the meaningful vote on a resolution, and then the withdrawal agreement Bill.
Does not my hon. Friend think that there should be a trigger within clause 9 to require the consent of the House to the overall withdrawal agreement that is reached before the powers are exercised? Otherwise those powers are unrestrained, and that seems wrong. Does he have a view on that?
My right hon. and learned Friend touches on a very important principle. I hope that I will be able to give him satisfaction on that precise point later.
Having dealt with the technical scope of the power and some illustrations of the scale of what it is going to be used for, and before I address the timing issues, I want to touch on the limitations and parameters—
I will give way to my right hon. Friend later. If she will just be patient, I want to make a bit of progress, given the time available.
It is worth looking very carefully at the limitations and parameters constraining the exercise of clause 9. It can only be used to implement the withdrawal agreement, and even then subsection (3) makes it clear that it cannot be used to levy taxation, to make retrospective provision, to create relevant criminal offences, or to repeal or amend the Human Rights Act 1998. Paragraph 6 of schedule 7 further requires the affirmative procedure in a whole range of scenarios, from the establishment of new public authority functions to the imposition of any fee exercised by any such authority. Critically—I am not sure that all hon. Members have picked this up—the power endures only until exit day. Its operation is shorter than that under clause 7. On the Government’s current expected timetable, it would, in practice, be used for only about six months, so it is not the open-ended power that some have suggested.
In addition, the Government have accepted the amendments tabled by my hon. Friend Mr Walker to establish a sifting committee to advise on the scrutiny procedures used for secondary legislation under the Bill. That will apply to this clause. That is on top of the Government amendment tabled last week that mandates Ministers to provide explanatory material for all the statutory instruments made under the principal powers of the Bill. We are listening. We are committed to making sure that Parliament plays a crucial role—a fully transparent scrutiny role—in the exercise of clause 9.
In sum, the power under clause 9 is required to legislate domestically for the large number of more technical separation issues that must be settled in time for exit day if we are to have the smooth Brexit that, whether we voted leave or remain, we all agree is crucial from here on in. The regulations—