Plain English summary of retained direct EU legislation

European Union (Withdrawal) Bill – in the House of Commons at 12:58 pm on 20th December 2017.

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“HM Government shall ensure that the publication of copies of retained direct EU legislation as set out in the provisions of section 13 and schedule 5 is accompanied wherever possible by a summarising explanatory document setting out in terms that are readily understandable the purpose and effect of that retained direct EU legislation.”—(Mr Leslie.)

This new clause would require Ministers to publish copies of retained direct EU legislation accompanied by ‘plain English’ and readily understandable summarising explanatory documents.

Brought up, and read the First time.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment 77, in clause 13, page 9, line 9, at end insert—

‘(3) A Minister of the Crown may by regulations—

(a) make provision enabling or requiring judicial notice to be taken of a relevant matter, or

(b) provide for the admissibility in any legal proceedings of specified evidence of—

(i) a relevant matter, or

(ii) instruments or documents issued by or in the custody of an EU entity.”

Clause 13 stand part.

Amendment 348, in schedule 5, page 36, line 9, at end insert—

“(c) any impact assessment conducted by Her Majesty’s Government that in any way concerns the economic and financial impact of in anyway altering, modifying or abolishing any relevant instrument.”

This amendment would require the Government to publish its economic impact assessments of the policy options for withdrawal from the EU.

Amendment 76, in schedule 5, page 37, leave out paragraph 4.

That schedule 5 be the Fifth schedule to the Bill.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Merry Christmas to you, Dame Rosie, and to all hon. and right hon. Members.

Under the peculiar vagaries of the Government’s programme motion, we have ended up with a peculiar day 8 in Committee, with a potential four-hour chunk to debate amendments to schedule 5, which is quite a narrow area of concern—the publication of retained EU legislation and rules of evidence—and, in theory, only four hours in the second half to debate the massive number of remaining amendments. The Committee will understand why I probably do not want to spend too much time on this first group, because I suspect a large number of hon. Members will want to speak on the second group.

Nevertheless, I will have a crack at new clause 21 because it is always worth probing the Government on every part of a Bill. This new clause would ensure that, when Her Majesty’s Government publish EU retained legislation, they accompany it with a summarising explanatory document setting out, in terms that are readily understandable, its purpose and effect.

This might seem an obvious point, and someone might say, “Of course Ministers intend to do this. Surely, if we have all the legal gobbledegook we normally get in statute and in primary and secondary legislation, there will be a summary not just for Members of Parliament but for the public to read and understand so they know what they are talking about.” But that practice has only been in effect for a small number of years and, although it started with the good intention of providing explanatory statements and explanatory notes, it has slipped back a bit from the original intention. When hon. Members pick up a dense and complex proposal, they will often find that the explanatory notes basically say the same thing, perhaps with a few dots and commas changed here and there, and feel that the proposal is as impenetrable as it ever was.

The point is that clarity is needed if we are to transfer a great set of EU legislation into UK law. Such clarity is an important principle that Parliament should underline and establish, which is what new clause 21 seeks to do. More than that, when we legislate we should make it clear not just for the lawyers but for everyone so that all our constituents know and understand the consequences of the laws we are putting in place.

Such clarity was not always evident in the referendum campaign in the run-up to June 2016. In fact, many would still say that there was a lot of obfuscation and opacity, and that the consequences of Brexit were not clear at all. In my view, as much clarity and plain English as possible should be obtainable.

Several hon. Members:

rose—

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Before I give way, I have to confess that I am a serial offender when it comes to not necessarily speaking in plain and clear terms, so I am not pretending in any way to be the world’s greatest simple communicator on such things. I am sure I will transgress this afternoon.

Photo of Mike Gapes Mike Gapes Labour/Co-operative, Ilford South

Another advantage of new clause 21 is that it would enable the Government to give us a clear explanation and perhaps say that “regulatory alignment” and “regulatory convergence” mean the same thing.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

My hon. Friend takes the words out of my mouth. He has spotted that the famous paragraph 49 of the phase 1 agreement between the negotiators on the EU side and the negotiators on the UK side talks about maintaining regulatory alignment, which is a phrase that manages to span all sorts of different interpretations. The EU and Republic of Ireland side believes “full alignment” to mean full alignment and that we will essentially have the same arrangements as we have now. But when the Prime Minister returned to the House of Commons, she sort of said, “Oh, no, it is a very narrow meaning in the terms set out in particular paragraphs of the Belfast agreement.” It is amazing how words can mean one thing to one listener and another thing to an entirely different listener.

Photo of John Redwood John Redwood Conservative, Wokingham

I agree that clarity is usually an admirable virtue, but if the thing the Government are trying to describe is not very clear in itself—perhaps because it is very complicated and impossible to make clear, or perhaps because it is deliberately obfuscating—what happens then? We cannot have a dishonest account of what a complex clause is doing.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

We should not assume that those watching our proceedings, or reading them in Hansard, entirely trust the Government or Members of Parliament simply to know and understand what is happening. People outside have a right to know, and of course we expect businesses and members of the public to interpret the legislation we pass.

This is a signal moment, and Mr Grieve rightly pointed out on, I think, day 2 in Committee that we are about to copy and paste a phenomenal body of legislation, which has accrued over decades, from the EU corpus of law into the British legal context. That requires us to pause for a moment to think about whether we are properly articulating to our constituents and others what exactly is happening in this process.

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union)

The hon. Gentleman refers to trust in the Government. Does he think our constituents will be reassured by the Prime Minister’s confirmation on Monday that the Cabinet’s discussions on our future trade deals do not involve the Cabinet having any assessment of the impact of different potential models?

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Governments would normally be expected to have information and facts, with evidence being collected and presented and with an assessment made based on information that has been analysed and digested in a professional way, but it appears that, although we were told they exist, the impact assessments do not actually exist but are sectoral analyses. What is the difference between an impact assessment and a sectoral analysis? Well, we have been discussing that for quite some time.

Returning to EU retained legislation, the right hon. and learned Member for Beaconsfield rightly pointed out that we have lived with important legal understandings, such as on equalities law and environmental law, for a number of decades. Those understandings have been tenets of our expectations of the civilised society in which we live. Of course, they will now be transferred from European law into UK law. If they had originated in this House, they would have been enacted in primary legislation and any changes would have had to be made through primary legislation. But the Government’s proposal is to take this new category of EU retained law and bring it into UK law, and it will not have the same status as primary legislation. In many ways, it will be repealable or amendable, often by secondary legislation—by statutory instrument. This is not a point about Brexit; it is about the process of transposition. It is important that the public know what is going on when we are doing this. If a transfer is taking place, information should be set out in the explanatory notes, not just about the technical details, but about the weight that those legal rights will have once they come back into UK law.

There are a number of other aspects to this—

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

The hon. Gentleman is making an interesting and relevant point, although it is of course true that all this legislation came in via secondary legislation in the first place and Parliament will have considerably more control over the secondary legislation that amends it than we currently have over the method that created it. I would imagine, as I am sure he does and the Government do, that Acts of Parliament will become more important, particularly if we want to make sure that this is not challengeable in the courts, as secondary legislation is much more vulnerable to challenge through the courts than primary legislation.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Yes. Although we disagree on many things, I think we can agree that if we are going to do this exercise, it needs to be done thoroughly and robustly, making sure that the intent of Parliament and the laws we are transposing are robust enough to withstand the test of time. Having explanatory statements to accompany those is an important development that has helped us in our legislative process recently. If we are going to have a sifting committee—it is not really a sifting committee; the procedures committee will be doing this—looking through all these statutory instruments and picking out which ones it thinks should not be passed through the negative procedure, this explanatory process ought to be in place to help hon. Members figure out which of these hundreds or even thousands of aspects of legislation are important enough to flag up to hon. Members more widely. That is a small point but it needs making. Other issues arise relating to “tertiary” legislation and the powers the Bill is giving to agencies and regulators to make, or to amend or remedy, laws. Again, I would like these things to be flagged up in plain English, wherever possible, so that parliamentarians can know about them. In essence, new clause 21 is about transparency, clarity and shining a light on this complicated bandwidth of activity that is about to hit all hon. Members, and that is important.

The only other point I wanted to make on this group—

Photo of Craig Mackinlay Craig Mackinlay Conservative, South Thanet

The hon. Gentleman has been a Member of this place for far longer than I have. We have lived through 40-odd years of what he is now describing as “dense and complex” legislation which applies to the UK, but only at this stage does he seem to be concerned about what that legislation really means. Why has he not been so similarly vexed and exercised these past 40 years?

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

I have been vexed and exercised for quite a long part of the past 40 years, but that is my problem. The hon. Gentleman should know that as we go forward we are creating a new type of legislation. It is true that many of the European directives and regulations have been adopted over the years in different ways, but we are now importing this great body of EU retained law. It is going to affect him and his constituents, as well as my constituents. The first point to make is: can we understand what it is? That provides a useful opportunity in this exercise—

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Gentleman may agree with me that if there are deficiencies in the way EU law has been imported into our law, the last thing we want to do is to perpetuate them by keeping the uncertainties after we have gone. Yet schedule 5 raises a number of uncertainties, which this House would do well to address.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

We are doing our duty by at least trying to comb over these issues now.

I wish to commend the Labour Front-Bench team on their amendment 348, which seeks to ensure that impact assessments are made properly and thoroughly before we take many of the decisions in this whole Brexit process. We already know enough about what has happened with the Brexit Secretary promising impact assessments and their turning out to be sectoral analyses. Many of us will have gone to the reading room and looked at the hastily written 50-odd documents, which would be good if someone was writing a master’s degree dissertation on the aviation sector—they are full facts and information—but do not really provide much more analysis than people can already get off Google.

Where we did get an insight, although it may have been a slip of the tongue, was when the Chancellor of the Exchequer appeared before the Treasury Committee on 6 December and said that he has

“modelled and analysed a wide range of potential alternative structures between the European Union and the United Kingdom” and that

“it informs…our negotiating position”.

So obviously there does exist within government some level of impact assessment and analysis that has not yet been placed in the public domain. It might be that the Brexit Committee wishes to explore that further or that the Treasury Committee wishes to do so, but it is important that we know whether this is simply a reference to the pre-referendum work that was done under the former Chancellor George Osborne or whether further assessments have taken place, independently undertaken by the Treasury. We need to know what analysis the different Departments have undertaken and what sort of modelling on the different sectors of our economy has been done.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

My hon. Friend is making an excellent speech. Does he agree that the Government produce assessments, whether or not they are “sectoral assessments”, on issues that are a lot more trivial than such an important thing befalling our country as Brexit? It is therefore imperative that we have detailed assessments on how this will affect our country.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Yes. That again gets to this question: are we accidentally bumbling our way through, where nobody has thought about doing an assessment, or, worse, is this work being done but then hidden, covered up and held back from Members of Parliament and from the public at large? I suspect that any serious analysis worth its salt will show that there are some damning consequences of exiting the single market and customs union, and I think that needs to be shared with the wider public.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

Does the hon. Gentleman agree that the Brexit Secretary was rather lucky when he appeared before the Select Committee, because having agreed to produce papers, he got out of it by sticking to a narrow definition of “impact assessment”? It was semantics that enabled him to get away with just producing the new documents, which he had hastily produced in the past few weeks, containing bland descriptions of where we are. As the originals are important documents, as these questions have been looked at and as we were told a summary had been sent to the Prime Minister, does the hon. Gentleman agree that the House’s motion meant that whatever documents the Government had that bore on the subject, they should have been produced? The Brexit Secretary should not have been allowed to get away with saying, “Strictly speaking, they’re not impact assessments.”

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

I do agree with that. We should not just skim over this question. These are some of the most profound decisions that Parliament will make for a generation and, if we are going to do our jobs correctly as Members of Parliament, having the right facts, getting the evidence, assembling the analysis, making sure we can weigh up the pros and cons of all these matters, and getting readily understandable, plain English explanatory statements of what is actually being proposed are prerequisites. They should be there to make us do our jobs properly.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

I will give way one last time, and then I will conclude.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

How does the hon. Gentleman imagine that the assessments are going to be any less divisive than the issue that we are seeking to assess? The assessments are based on assumptions, and we profoundly disagree about the assumptions.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

That is getting us into this question about experts again and whether there is such a thing as a fact or whether everything in this world is an opinion. It is important to make sure that if there are facts and if we can prove cause and effect—for example, if we know that the introduction of inspections or a hard border is going to slow down lorries going through a particular port—we can, QED, prove that there is going to be a particular consequence for the economy. That sort of analysis ought to be shared with the wider world.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

I did say I was trying to finish, but my hon. Friend tempts me.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth 1:30 pm, 20th December 2017

I wanted to give my hon. Friend an example before he concludes. Last week, the Prime Minister claimed that the UK would make “significant savings” as a result of our leaving the EU, but I have asked questions and Treasury Ministers have not been able to explain what those savings will be or to put a figure on them. Yet Financial Times analysis suggests that we will lose £350 million per week, which contrasts with what was on the side of that red bus.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

That is right. That Financial Times analysis was worth sharing and should be shared, but we should not rely on journalism alone to do the job. We have a professional civil service; let us not gag it or try to lock it under the stairs somewhere. We should let that expertise come out so that we can all see and hear it.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Members are enjoying new clause 21 so much! I thought it was a simple one.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I only want to help the hon. Gentleman. Does he think it would have been a lot easier had the Exiting the European Union Committee asked the Secretary of State for the impact opinions that he may well have had?

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

Again, when is an assessment an opinion? In some ways, it diminishes and slightly denigrates the professionalism of our civil service to suggest that its output is merely conjecture or opinion. There are some things in this world that are facts, from which we can draw conclusions and which any rational observer would not really question.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee

May I read my hon. Friend the steel sector view? It says:

“it will be a lengthy and potentially very costly process for UK manufacturers to break into new markets…Returns on sales to new markets will frequently be poorer than from existing contracts with customers in neighbouring countries.”

Is not that something that the British people need to know?

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

That is the level of analysis and assessment that deserves to be shared and that was not available to the public prior to the referendum. It should not be dismissed but made more widely available. Members, and beyond them voters, can weigh up the different opinions. Some Members might rubbish representatives of the steel sector and say, “What do they know? I know better,” but we can weigh these things up and bring them into balance. We have the opportunity to debate transparency. Let us allow sunlight to flood over this issue and make sure that we are better informed going forward than we were before the referendum.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

It is a pleasure to participate in the Committee’s consideration of schedule 5 and clause 13, although the reality is that the clause says very little and the schedule says a great deal.

As we have just heard, part 1 of schedule 5 provides for the publication of retained direct EU legislation by the Queen’s printer, which should be completely uncontroversial because its purpose is to promote transparency and access so that people in the United Kingdom can know what the law is. That is not some slight matter. One of the points that has been gently canvassed in the debate so far is the extent to which EU law may have created, in the way it has been brought into UK law, a degree of uncertainty as to what it is, in which case that is the last thing we should retain when we carry out this retention of the law. One of the central principles of the rule of law is that the law must be

“accessible…intelligible, clear and predictable”.

That is one of Lord Bingham’s principles of the rule of law, and it should matter to the House very much with respect to how it legislates. People need to be able to understand what activity is prohibited and therefore discouraged, and what their rights are so that they are able to claim whatever rights they have.

The interesting thing about part 1 of schedule 5 is that paragraph 2 empowers Ministers to make exceptions to the duty to publish retained direct EU legislation by

“giving a direction to the Queen’s printer specifying the instrument or category of instruments that are excepted.”

There appear to be no limitations on that power and no guidance on when such instruction might or might not be appropriate. My first question to my colleagues on the Treasury Bench, and particularly my hon. and learned Friend the Solicitor General, is: what is the Government’s intention in respect of that exception? Why is it there—we need to understand why it has been included in the Bill—and how will it be used in practice? It seems to me that it is desirable that the entirety of retained direct EU legislation should be made available through the Queen’s printer, so what is the intention as to the circumstances in which a Minister might remove himself from the duty and give a different direction? There is, perhaps slightly to my regret, no amendment to address that question—had I focused on it slightly better at an earlier stage and not been diverted by other matters, I might have tried to tease it out by tabling an amendment—but as we are also debating whether the clause and schedule should stand part of the Bill, it is important that we give the matter some consideration. Indeed, it ties in exactly with what Mr Leslie said in introducing new clause 21, which is on exactly the same principle or philosophical issue of providing certainty.

My second question is about part 2 of schedule 5, which provides for Ministers by regulations to enable or require judicial notice to be taken of retained EU law or EU law. There are no limitations whatsoever on this delegated legislative power to enable or require judicial notice to be taken and, as far as I can see, nor are there any provisions to require that a Minister can make such regulations only under certain circumstances—for example, regulatory harmonisation might be a legitimate reason for making such regulations. This is a classic Henry VIII power, as paragraph 4(3) provides total Henry VIII powers, and is only limited, under paragraph 4(4), to primary legislation made or passed before the end of the Session in which this Bill is passed.

All that takes me back to an interesting debate the Committee had on previous day—which one has rather faded out of my memory—in which my right hon. Friend Sir Oliver Letwin and I raised our continuing concerns about the judiciary having a lack of clarity about how they were supposed to interpret and apply retained EU law. Lord Neuberger and Lady Hale have expressed concern that the Bill is insufficiently clear about how retained EU law should be interpreted by the courts post exit. Lord Neuberger in particular was concerned by the prospect of the courts having to determine questions of regulatory harmonisation against divergence between UK and EU law—an essentially political topic, with possible economic consequences to the interpretation. As it happens, regulations made under part 2 of schedule 5 might address the judiciary’s anxiety about the need for better guidance on retained EU law, but what troubles me is that this provision again subtly sidelines Parliament from any role in providing guidance, as it is a matter of Executive discretion.

I must say to my hon. and learned Friend the Solicitor General, and to my other colleagues on the Treasury Bench, that I do understand the Government’s difficulties. The whole Bill is about an accretion of power to a Government who do not really know how they are going to have to use that power and are fearful that something will come up that will require them to act swiftly, and who therefore think that they have to maximise the tools at their disposal.

Forgive my repeating this—I think that the Bill has been quite well improved as it has gone through the House and, indeed, some of the assurances that have been given will lead to further improvements, I have no doubt, on Report—but it was this sort of thing that made me describe the Bill as a monstrosity on Second Reading. It is so contrary to the normal way in which one would expect to legislate for Parliament both to grant the powers that a Government need, including, where necessary, powers of secondary legislation, and at the same time to make sure that these cannot run out of control. On the plain face of the Bill, this is really one of the immense Henry VIII powers. The Government have decided to resolve this issue by taking a very big sledgehammer to the normal structures.

Photo of Anna Soubry Anna Soubry Conservative, Broxtowe

During last Wednesday’s debate, I specifically asked whether the Bill was first drafted before the June general election. My view—I do not know whether my right hon. and learned Friend shares it—is that this Bill was all about delivering a quick and hard Brexit, and the reason for these extraordinary powers is that they were needed by Ministers to execute that process in quite a short period of time. Does he think that there is any merit in that?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I think I might be a little kinder to my hon. Friends on the Treasury Bench, because it seems to me that at the time the Bill came into being, the Government still thought that it was all that was required to take us out of the EU. I think that that is where its genesis and origin lie. In actual fact, one of the supreme ironies is that for all the heat that has been generated—we have carried out some proper scrutiny as well, but certainly, last Wednesday, there was a lot of heat—much of what we are doing here might well turn out in practice to be completely academic. In fairness to the Government, once they were landed with this immense problem, I am not sure that they were wrong to proceed in this way, but it just so happens that that is where we are going to end up. However, that is not a reason why we should not pay attention to the powers that the Government are seeking to take—we do have to pay attention to them.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I will give way to my right hon. Friend in just a second, because I do not wish to speak for very much longer.

For that reason, I do hope that a bit of focus can placed on schedule 5. I do not have any amendments tabled. I am not about to create difficulties for the Government or to divide the House on schedule 5, but I will, if I may, just ask a question as we approach Report, because I cannot believe that this will not be looked at in the House of Lords. It would be quite nice for the Christmas period to be used for quiet reflection on just how wide these powers are and whether, yet again, the Government might, on reflection, be able to circumscribe them a little bit, so that they appear to be slightly less stark in terms of the power grab that they imply. That is quite apart from the fact, to come back to my first point, that the exception in paragraph 2 giving Ministers the power not to print strikes me as very, very odd.

Photo of John Redwood John Redwood Conservative, Wokingham

Does my right hon. and learned Friend agree that the Henry VIII powers, as he calls them, in the Bill are much more modest than the Henry VIII powers in the European Communities Act 1972 that it replaces? This is about only transferring existing law into UK law. Where and when we wish to amend, improve or repeal, that will require a full parliamentary process, which it did not need when it came from Europe.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I understand my right hon. Friend’s point. Of course, I am mindful of it—it has been raised on numerous occasions during the passage of the Bill—but the system that we had to follow as a result of our EU membership implied that that law, having been agreed by the Council of Ministers and translated into directives, had direct effect in this country and was then applied, not usually through primary legislation but by means of secondary legislation, or indeed directly sometimes. I understand all that, but it does not provide a justification for taking unnecessary powers in trying to effect our departure.

As I said, there is something a bit odd about schedule 5. There must be legal certainty, so why are the Government taking for themselves a power to create legal uncertainty if they so wish? Let us be clear about this: if guidance is a matter of Executive discretion, it is a very unusual state of affairs indeed. There is guidance and guidance. There may be general guidance that Parliament might give as to how it intends retained EU law to be treated. I do not have difficulty with that. Indeed, I think that it may be something that we will have to do. As we have discussed—my right hon. Friend the Member for West Dorset and I were in agreement about this—we think that Parliament might want to explain how it wishes this matter to be approached generally. That, if I may say, is a rather different thing from saying that Ministers can suddenly wake up one morning and decide, “I want the law to be interpreted in a different way on some specific matter, and I am going to lay a statutory instrument before Parliament that will enable me to do that.” It is a very unusual thing to do, and the Government must be in a position to justify it. It slightly troubles me that the law can be tinkered around with in this form. Obviously, Parliament can decide what it likes about changing law. Occasionally, we change laws by statutory instrument, through regulatory change, but it is not something that we should do lightly.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee 1:45 pm, 20th December 2017

Clause 13 is confined to the publication and rules of evidence. The schedule itself is about publishing what is retained direct EU legislation. Can my right hon. and learned Friend describe to me what latitude the Government would have that could do so much damage, or be so capricious, within the powers of the Bill, and can he give an example of what would be so damaging and outrageous?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

As I have explained, this is a Henry VIII power, so within the period in which this power is operational—this is on my reading, but perhaps my hon. Friends on the Treasury Bench will correct me—a Minister of the Crown may, by regulation, essentially change the way in which retained EU law is handled by requiring

“judicial notice to be taken of a relevant matter, or…provide for the admissibility in any legal proceedings of specified evidence of…a relevant matter”.

That is a very extensive power. Effectively, it gives a power to rewrite how legislation should be interpreted.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The examples could be endless—[Interruption.] Well, if there is an established rule by which, for example, EU law is currently being applied, a Minister could say that, in future, that should be disapplied because notice should not be taken of its previous application.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

Does the right hon. and learned Gentleman agree that it is not correct to compare the direct application of EU law with Henry VIII powers? When EU law is made, we all sit around the table. EU law is not other people’s law but our law. We sit at the table when EU law is being made, so it is an incorrect comparison.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I do actually agree with the hon. Lady and, I am afraid, disagree with my hon. Friend Mr Jenkin. Of course, membership of the EU implies a pooling of sovereignty, but the decision-making process by which law has been created in the EU is one that is done not by faceless bureaucrats, but by the Council of Ministers. There is absolutely no doubt about that at all—

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I do not wish to be dragged off into some new polemical argument. My hon. Friend says in secret, but, if I may say, we are signed up to hundreds of treaties other than that with the EU in which we pool our sovereignty to come to common positions with our fellow treaty makers.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I think that I am about to take up much more time than I wanted to. I give way to Lady Hermon.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am extremely grateful to the right hon. and learned Gentleman for allowing me to intervene. I agree entirely with his eloquent points about the power that schedule 5 transfers to Ministers of the Crown. Will he spend a moment reflecting on the definition of a Minister of the Crown that is set out in clause 14? The definition comprises not just Ministers, but

“also includes the Commissioners for Her Majesty’s Revenue and Customs”.

The power in schedule 5 is being given to a very broad range of individuals.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Lady is right. [Interruption.] Next to me, from a sedentary position, my hon. Friend the Member for Harwich and North Essex is saying, “It’ll only be used for technical matters.” Indeed—let us be clear about this—I strongly suspect that that is the intention, but this is a very extensive power and, as it is worded, it goes way beyond technical amendments. As we are in Committee, it seems perfectly proper for me, as a Back-Bench Member of Parliament—it does not matter which side of the Chamber I am sitting on—to ask my hon. Friends on the Treasury Bench to explain to the Committee how the power will be used. I gently say to my hon. Friends that the problem with this debate is that the heat that starts to come off very quickly goes into issues of principle about what has been going on over the past 50 years. Could we just gently come back to focus on the issue at hand?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

As much as I would like to give way to my right hon. Friend, I am actually now going to sit down.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I want to take up my right hon. and learned Friend on one small point. After agreeing with Wera Hobhouse and justifying the past 40 years by saying that decisions were agreed by Ministers sitting together to make law, he knocked down his own argument as to why he cannot support what Ministers are doing because, of course, they would use this power as Ministers who have been elected to implement change and make law. My right hon. and learned Friend cannot have it both ways. Either he thinks that the last 40 years were wrong, which is why one defends the idea of change, as he did originally; or he thinks that the last 40 years were fine, in which case there is no attack on this particular aspect of the Bill.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am afraid that I disagree totally with my right hon. Friend. In the last 40 years, we decided to pool sovereignty as a matter of national interest and necessity. This is a totally different issue; it is about our domestic law. When it comes to matters of domestic law, this House does not have the necessary constraint, which is the very reason why I have asked these questions. I am quite confident that my hon. Friends on the Treasury Bench will be able to provide some cogent answers to the points I have raised.

Photo of Mike Gapes Mike Gapes Labour/Co-operative, Ilford South

Will the right hon. and learned Gentleman give way?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

All right, but this is the last one.

Photo of Mike Gapes Mike Gapes Labour/Co-operative, Ilford South

Is there not also another difference, which is that decisions within the European Union are not just taken by meetings of the Council of Ministers, as there is a co-decision process that involves elected Members of the European Parliament representing all 28 member states?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. Gentleman is absolutely right. I do not want to get dragged into revisiting the way in which the European Union works. The European Union has many flaws, and there are many issues on which I have seen fit to criticise it during my years in the House—including, sometimes, the way it goes about its business. Having said that, this constant conflation of the two issues when we are carrying out scrutiny of what will be domestic legislation is, in my view, not helpful. We need to focus on what we are doing. If we do, we will come up with the right answers.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

It is a real pleasure to follow Mr Grieve, who made a characteristically thoughtful and reasonable contribution. It is always remarkable to see how such thoughtfulness and reasonableness can be so provocative to some Government Members.

I wish to speak to amendments 348 and 349 in my name and the names of my hon. and right hon. Friends. I hope, in doing so, to build on the agreement across the Committee that was evident last Wednesday, when we made the decision that Parliament should have a meaningful vote on the final Brexit deal.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

Just for clarification, amendment 348 is in the first group of amendments and amendment 349 is in the next group.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

Thank you for that clarification, Dame Rosie, although I think that the points that I am making stand regardless.

Following on from the decision last Wednesday, let us be clear that an overwhelming majority of Members respect the result of the referendum, as was reflected in the vote on article 50, but there is also a clear majority who reject the deep rupture with our friends and partners in the EU 27 that is advocated by some of the more extreme Brexiteers. In the months ahead, that clear majority needs to find its voice. Most Members—many more than reflected in last Wednesday’s vote—recognise that our future lies in a close and collaborative relationship with the EU. [Interruption.] I am sorry if that was provocative to some Government Members. The Prime Minister describes that relationship as a “deep and special partnership”. It is a relationship based on maintaining common EU standards and regulations necessary for our future trading relationship, and it is vital in protecting jobs and the economy.

It is also a majority of the House who recognise that the referendum was a close vote—not the unprecedented mandate that some have suggested. Yes, 17.5 million people voted to leave the EU in 2016. That is roughly the same number as voted to remain in 1975, although that represented 67% of voters in 1975. It was a clear decision, but a close vote, and one that we should be implementing in a way that unites the country, not in a way that drives a further wedge between the 52% and the 48%.

Photo of Richard Graham Richard Graham Conservative, Gloucester

I absolutely agree with the hon. Gentleman that we should be trying to bring people together, rather than separating them. In that context, will he explain his definition of Brexiteer? He used the word earlier in the phrase “more extreme Brexiteers”. In his definition, is every Member who voted for article 50—I think that five sixths of the House did so—characterised as a Brexiteer?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

Clearly not. Like hon. Members across the House, including the overwhelming majority of the Opposition, I campaigned to remain in the European Union because I thought it was right thing to do economically and politically for our country and our continent. But I voted for article 50. That clearly does not characterise me as an extreme Brexiteer. Since I was elected in 2010, it has startled me that a small number of Members seem to define their politics by their ambition to leave the European Union at any cost and at any price; that is what I would describe as extreme.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Again, just for clarification, Members who voted for article 50 are not Brexiteers, but presumably those who did not vote for article 50 are also not Brexiteers. Therefore, none of us is a Brexiteer; or are we actually all Brexiteers and just trying to resolve the issue?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I am not really sure where the hon. Gentleman is trying to go with that argument. My point is that an overwhelming majority in the House wish to see us implement the decision of 2016 sensibly, and in a close and collaborative relationship with the EU 27. There are others—a small number, whose voices I expect to hear shortly—who would see us leave at any cost, and I regret that.

Photo of Kate Hoey Kate Hoey Labour, Vauxhall 2:00 pm, 20th December 2017

My hon. Friend says a number of extreme Brexiteers in this House want to leave at any cost. Does he accept that a small number of Members will do anything—anything—to stop the United Kingdom carrying out the wishes of the British people to leave the European Union?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

No, I do not, and it is unfortunate that some people have been characterised in that way, as Mr Grieve and others were by some of their colleagues last week. If I can now make some progress—

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

Well, while we are talking about extreme voices, I am happy to give way.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

There are right hon. and hon. Members who say they want to honour the result of the referendum, but who actually want the European Union to carry on controlling our laws. I call them Brexinos—people who want Brexit in name only. There may well be a majority of them in this House, but that would not be respecting the result of the referendum, would it?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

The hon. Gentleman is a good example of those who see conspiracy in any corner. I note the article he wrote in The Guardian on 8 October under the title “It’s a sad truth: on Brexit we just can’t trust the Treasury”. He went on to say:

“There is no intrinsic reason why Brexit should be difficult or damaging, but the EU itself has so far demonstrated it wants to make it so…it has co-opted the CBI…the City and…the Treasury to assist.”

Well, I think that the majority of Members take a more rational view.

The decision taken in 2016 was not a mandate for driving over a cliff edge with no deal or for having no transitional arrangement in place. It was not a vote for leaving all the agencies and partnerships from which we have benefited over the years and could continue to benefit or for turning our back on the single market, walking away from the customs union or—I say this with an eye on the contribution made in the last debate by Mr Duncan Smith, who is paying more attention to his phone than to the debate—turning our back on the Court of Justice of the European Union.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

Would the hon. Gentleman let me intervene?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I was hoping the right hon. Gentleman would.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

Is the hon. Gentleman not guilty himself, however, of attempting to interpret what the vote was for? On the ballot paper was the issue of whether to leave; the rest is down to negotiation. So, surely, his position is as absurd as that of anyone who says they know these things. He does not know. He knows only one thing: that the British people voted to leave. The rest is for negotiation.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I thank the right hon. Gentleman for his intervention. The rest is indeed down to negotiation, and it is down to this Parliament to make the final decisions.

In the right hon. Gentleman’s contribution to, I think, the debate on day one, he sought to interpret the mandate by saying that the primary reason, from the research he had done, for leave voters voting as they did was their antipathy to the Court of Justice of the European Union. I was quite surprised by that, because I talked to hundreds of people on the doorstep who told me they were voting to leave, and the jurisdiction of the CJEU was not one of the regular issues raised.

Therefore, after day one, I took the time to look at the right hon. Gentleman’s research, which was carried out in partnership with the Foreign Secretary’s and the Environment Secretary’s favourite think-tank, the Legatum Institute. I located the report, and I read it with interest. Unusually, it did not include data on the full results, only the final weighted results, but the interesting thing was the question itself. Whereas the other choices were value-neutral—the economy, immigration, national security or the NHS— one option was

“The ability for Britain to make its own laws”— a leading question if ever I heard one. [Interruption.] If the question had been “Jurisdiction of the Court of Justice”, the right hon. Gentleman may well have found a different answer. Other research, with larger samples—

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

Perhaps the hon. Gentleman can skip that and go to the point that was in that pamphlet, which made it clear that when people were asked what their primary reason was for voting to leave, it was “Take back control”—control of our laws, our borders and our money. He can debate that as much as he likes, but the public knew about that when they voted.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

Are we not in a discussion about who interprets what? Is it not therefore time that we asked the people: what did they mean?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

We will come to that point in the second half of our debate today, and I will take the opportunity to comment on it then. However, to answer the right hon. Gentleman, the point I was making was that he sought to interpret the leave vote in a way that, on the basis of the research he cited, was flawed.

Analysis he might look at of nearly 3,000 British people, which was conducted by the NatCen Social Research, found that concerns about immigration were the driving factor for 75% of leave voters, which should not surprise him, because that was something he put very much at the centre of his arguments during the leave campaign.

If we know what the vote was not, let us remind ourselves what it was: it was simply a vote to leave the European Union. The campaign was hugely divisive. I spoke at dozens of meetings during the campaign, and the very last question of the very last meeting, in a local church, was, “How are you going to put our divided country back together again after all this?” Sadly, that question is as relevant now as it was then, as some of the abuse faced by Conservative Members after the vote last week demonstrated.

Meeting that challenge is a responsibility for us all, and it starts with us recognising that the majority in this House speaks for the country in wanting a sensible approach to Brexit. Instead of fuelling division, the Government should reach out and seek to build on that consensus for the next phase of the negotiations, in a way that will bring people together.

Last week’s drama should have been unnecessary. We should have been able to readily agree on the sovereignty of Parliament and on a meaningful final vote for this place. Labour amendments 348 and 349—when we come to it—which seek the publication of any impact assessment conducted by the Government, should be as uncontroversial as the idea that Parliament should have a say.

Clearly, events have moved on since these amendments were tabled, but real issues do remain. We obviously brought a motion on the issue to the House on 1 November, asking that impact assessments should be passed to the Exiting the European Union Committee. We did that for the same reason that the House voted last week: we want proper transparency and accountability in this process, but that is not what we got.

The Government neither amended nor opposed our motion, but they hoped to sidestep it. When Mr Speaker confirmed it was binding—

Photo of Richard Graham Richard Graham Conservative, Gloucester

On a point of order, Dame Rosie. My understanding of the advice you gave earlier is that amendment 348, which is about impact assessments, is not being discussed at this moment. I think that you told us that this debate is supposed to be about new clause 21, which is about clear English. That is why I asked the question about the shadow Minister’s definition of the word “Brexiteer”. However, I have not heard anything about new clause 21, and I think that you said we are going to take amendment 348 later.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

No, I think the hon. Gentleman misheard. I actually said that amendment 349 was in the second set and that amendment 348 is in this set, as is clause 13 stand part and schedule 5—hence why the debate is a little wider than the hon. Gentleman might wish it to be.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

Thank you, Dame Rosie.

The point I was making was that when Mr Speaker confirmed that our motion was binding and, indeed, that the Government should comply urgently, they clearly found themselves in a bit of a fix. Three weeks later, they finally produced something, although it was not what we voted for. I was really keen to read the papers that had been described by the Secretary of State for Exiting the European Union as offering “excruciating detail” on the impact of the various options we faced as a country when leaving. So I, like a number of other Members, booked my slot for the DExEU reading room at the earliest opportunity.

On 5 December, I turned up at 100 Parliament Street and reported to reception. I was accompanied, closely, to the room. When I arrived, I was required to hand over my mobile phone. Having been sat at the table, two lever-arch files were brought to me from a locked cabinet, and as I read them I was supervised by two civil servants. So what did I find? Nothing that could not have been found in a reasonable internet search—which is presumably what the civil servants had been doing over the preceding three weeks in order to prepare them.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Digital, Culture, Media and Sport) (Arts and Heritage)

I went through the exact same experience. I visited the Cabinet Office and gave in my mobile phone, and made my written notes on the various tables in the section I was interested in. Afterwards, I found that I was given the identical information by submitting written parliamentary questions —so why all the secrecy?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

My hon. Friend makes the point very well. Why all the secrecy for what was available in that room, because there was certainly no assessment—or analysis, if we are playing with words—of the impact of the policy choices facing the Government and the country?

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

The education section starts by saying, “We will not touch on the effects on Horizon 2020 or Erasmus.” It does not touch at all on non-higher education. There is no impact assessment on summer schools or language teaching in this country. Clearly, the work was not really done even with an internet search.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

We are probably straying on to dangerous territory if we start talking about the content, such are the rules surrounding the documents until such time as they are made public, but those of us who have been there know that they provide no analysis and no impact assessment. So it was no surprise when the Secretary of State told the Brexit Committee last Wednesday that the Government had undertaken “no quantitative assessment” of the impact of leaving the customs union—just one of the policy choices we face. Yet just a few hours later, in a room just a few yards away, the Chancellor told the Treasury Committee that the Government had

“modelled and analysed a wide range of potential alternative structures between the EU and the UK, potential alternative arrangements and agreements that might be made.”

The Chancellor’s answer was developed in oral questions last Thursday by the Under-Secretary of State for Exiting the European Union, Mr Walker, who is in his place. He said:

“Our sectoral analysis is made up of a wide mix of qualitative and quantitative analyses examining activity across sectors, regulatory and trade frameworks and the views of stakeholders.”—[Official Report, 14 December 2017;
Vol. 633, c. 588.]

Let us bear in mind that the Secretary of State had said that no quantitative assessment has been undertaken on the impact of leaving the customs union. So in this

“qualitative and quantitative analysis of regulatory and trade frameworks” have the Government for some reason exempted the customs union?

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union)

Is the hon. Gentleman confused, as I am, about the reasons why the Government seem to have this problem—I do not know whether it is an ideological objection—with conducting impact assessments? We heard from the Prime Minister on Monday that Ministers are sitting down to discuss our future trading relationship with the European Union without having in front of them any impact assessments on what the different economic impacts of these models might be. How irresponsible is that?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

The worry is that either they are not conducting them or they are conducting them and not sharing them in the way that was required.

Photo of Mike Gapes Mike Gapes Labour/Co-operative, Ilford South

Could not there be another, far more simple, explanation—that the Secretary of State is heading a Department that should be renamed “the Department for Winging It”?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

That is probably the sort of phrase that the Secretary of State might use on some occasions.

On 2 February 2017, the Secretary of State told the House:

“We continue to analyse the impact of our exit across the breadth of the UK economy, covering more than 50 sectors—I think it was 58 at the last count—to shape our negotiating position.”—[Official Report, 2 February 2017;
Vol. 620, c. 1218.]

Was he right? Or was Mr Jenkin right when he said recently that the Secretary of State

“has never actually referred to impact assessments…
These were a fiction of the media and the Labour party”?

If the Government are playing with semantics, claiming that assessments of impact and impact assessments are not the same thing, they should be aware that they are at serious risk of misleading the House. Even more worryingly, have they, as we have heard suggested, actually not undertaken this work at all? Are they hiding these assessments in semantics—hiding them from the House and from the Select Committee—or do they not even have any work to hide?

We will not press the amendment to a vote. It would, after all, replicate the vote on the decision that the House took on 1 November—we have seen how the Government responded to that—but that should not be interpreted by those on the Treasury Bench that this signals an end to the matter. We will continue to press for accountability and transparency throughout the negotiations and hope that that will find support across the House.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 2:15 pm, 20th December 2017

I want to speak briefly on new clause 21 and amendment 348. I also want to make some points in response to my right hon. and learned Friend Mr Grieve, because I agree with him on half of what he says and not on the other half. I will keep that stored up for the end to try to persuade him to stay; otherwise, I am sure that cups of tea may beckon for many.

I think that new clause 21, tabled by Mr Leslie, is the great confession that we have been waiting for from the pro-Europeans in this House. The new clause has been given the support of some of the most luminous pro-Europeans known to the nation: Mr Lammy, Mr Bradshaw, and that great panjandrum of pro-Europeanism, the distinguished gentleman the leader of the Liberal Democrats, Sir Vince Cable. All have signed this new clause. It says what we Eurosceptics have been saying all along: that the European Union produces its law in a form of gobbledegook—stentorian, sesquipedalian sentences that nobody can ever understand—and that when it is brought into British law, it should therefore be brought in in a plain English translation. The title of the new clause is “Plain English summary”.

Photo of Kenneth Clarke Kenneth Clarke Father of the House of Commons

I agree with my hon. Friend’s description, actually. Does he agree that a lot of these things are almost as bad as the drafting of the Finance Bills that the Government bring before the House of Commons year after year?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am extremely grateful for the humility being shown by my distinguished right hon. and learned Friend, a former Chancellor of the Exchequer, who admits that some of the Bills brought forward by his own former Department are incomprehensible to the lay reader. It is a broader problem of legislation, but it has been a particular problem of European legislation. That is why I have some sympathy for the new clause. As EU law is brought into UK law, which is widely accepted as the right starting point for when we leave the European Union, the Government ought to seek to do it in a form that is intelligible and easy to understand. This is one of the areas where I agree with my right hon. and learned Friend the Member for Beaconsfield, who said that that is one of the principles of the rule of law. As we do this, we should of course be sticking to principles of basic constitutional fairness.

It is glorious that the second argument of the Eurosceptics has been accepted in this new clause. The first argument is the basic one of taking back control, but the second is that the fundamental nature of the way in which the EU created law, and the whole body of the acquis communautaire, was not comprehensible to most people, was not subject to satisfactory democratic control, and was a bureaucratic monster that rolled on and on regardless.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Of course I give way to the hon. Lady, whose constituency I encircle.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

I thank the hon. Gentleman, my constituency neighbour, for giving way. Has he ever tried to put any legislation in front of an ordinary person and ask him or her whether it is comprehensible? Our discussion demonstrates our difficulty, as parliamentarians, in making comprehensible to the people who elect us what we are actually about.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

In North East Somerset, we do not have ordinary people. We have only exceptional, brilliant and talented individuals of the highest and finest calibre. I have a serious point to make in that: we, as politicians, should never use the term “ordinary people”, implying that we are some priestly caste who understand the mysteries of legislation, whereas ordinary people do not.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

I apologise for the use of the term “ordinary people”. I accept that it is possibly not a very good way of describing the people who elect us.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I am very grateful to the hon. Lady for that. I think the point is important, and we should try to remember it.

A lot of the legislation that we pass can be explained to everybody—even to ourselves—in an understandable way. If we look at the Treasury Bench, we see some of the finest brains in Britain. They get up at the Dispatch Box and explain to us what is going to be passed into law, in terms that even Members of Parliament—including those of us who are not learned Members—can understand. I think that laws can be explained simply, and that is a worthy ambition.

New clause 21 makes the important point that during our period of membership, the EU increasingly turned out law that people did not understand. We have a golden opportunity to improve the quality of the legislation that we pass, improve people’s general understanding of it and improve our own understanding of it. Clarity is just and fair. I agree with my right hon. and learned Friend Mr Clarke, the former Chancellor of the Exchequer, that we want to apply this to our own work as well. There is no point in complaining about the European Union in that regard, but making our own laws incomprehensible. As an aside to what he said, one of the reasons why there is so much tax avoidance is that tax law is written in so complicated a manner.

Amendment 348 is important, and as Paul Blomfield rightly said, it touches on the subject of the Humble Address that was brought forward on 1 November. The Government have dealt with the matter, and it is important to look at what they have done in response to the Humble Address. Many Conservative Members have opposed the European Union on the grounds of parliamentary sovereignty and an understanding of the nature of our constitution. We must recognise that a Humble Address motion is unquestionably binding. That has always been the tradition of this place. It is quite clear from “Erskine May” that there is a profound duty on the Government to fulfil the terms of any Humble Address. It will be interesting to see how often the Opposition use that procedure over the next few years to try to get information from the Government.

It is worth noting why the Humble Address procedure fell out of practice. I think the real reason was that Governments tended to command sufficient majorities in the House that a Humble Address motion they opposed would not get through. In the situation of a very slim overall majority, with the help of our friends from the Democratic Unionist party—

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

It is not expensive help. That is quite wrong. As the hon. and learned Lady knows, the £1 billion is less than was spent in Northern Ireland in the last Parliament. It is quite right that a Unionist party should help to form a Unionist Government.

Humble Addresses fell out of favour because they simply could not be got through. We need to look at how the Government responded to the Humble Address. My initial reaction was that the Government had not fulfilled the terms of the Humble Address, because it was not initially clear that the impact assessments did not, in fact, exist. The first indication was that the Government were nervous about producing information —they never said “impact assessments”—that might undermine the negotiating position. That seemed a sensible point to make, but not one that could conceivably override a Humble Address, which took precedence over it.

As the information was presented to the Exiting the European Union Committee, it became clear that the Government had been as helpful as they possibly could have been in producing information that had not, in fact, been requested by the Humble Address, which asked for something that did not exist. I think that technicalities in this field are important, and it is rational for Governments to follow them.

I happen to think that that is a lesson for the Opposition. If they are to call for Humble Addresses, they must make sure that those Humble Addresses are correctly—even pedantically—phrased to ensure that they are asking for something that really exists. I feel that the hon. Member for Sheffield Central was being unfair when he criticised the Government for failing to produce information that did not exist. The Government did as much as they could to produce the two folders—the 800 pages—of sectoral analysis. When we look through the record, we see that that is what the Government always admitted existed. The Government were careful to answer questions by referring to sectoral analyses, even if the questioner asked for impact assessments. That, I think, is where the misunderstanding developed that such impact assessments existed.

Photo of David Drew David Drew Shadow Minister (Environment, Food and Rural Affairs)

I do not know whether the hon. Gentleman has been in to read the documents, but by no stretch of the imagination are they an analysis or an assessment. They are purely descriptive. Either they have come from Wikipedia or—I think this is more likely—they are a bad piece of GCSE coursework, which would get a fail if it was supposed to contain analysis.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I did go to see the documents, as a member of the Exiting the European Union Committee. I was lucky; I was not told that I had to hand over my mobile telephone, my secret spyglasses or whatever other kit I might have borrowed from James Bond and brought with me so that I could try to take these secret bits of information out to the wider world. I did not have to suffer the great indignity that some other hon. Gentlemen have suffered. I was allowed to sit down and plough through the documents.

I must confess that on that afternoon, I would have been happier reading a P.G. Wodehouse or a similarly entertaining document. I also confess that there was not a great deal in the bit that I read that could not have been found out by somebody with an able researcher or competence in the use of Google. None the less, the information had all been brought together in a usable fashion in one place, and it was an analysis of the sectors covered. It may not have been exciting, it may not have been the read of the century and it may not have won the Booker prize. None the less, it was a detailed sectoral analysis and it more than met the requirements laid down by the Humble Address, which asked for something that did not exist.

Photo of Wera Hobhouse Wera Hobhouse Liberal Democrat Spokesperson (Housing, Communities and Local Government)

The hon. Gentleman is extremely generous to give way again to me. I asked the Secretary of State in the Select Committee where and when he thought the misunderstanding had arisen, but I do not think I got a very satisfactory answer. He had plenty of opportunities in the House to correct us and say, “These are not impact assessments; they are sectoral analyses.” He never chose to do that, and I am still waiting for the answer. Why does the hon. Gentleman think that the Secretary of State did not have the opportunity to clear up that misunderstanding?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

I do not agree with the hon. Lady. I think the Under-Secretary of State for Exiting the European Union, my hon. Friend Mr Walker, made the situation clear from the Dispatch Box. He said in no uncertain terms that there were not impact assessments, but there were sectoral analyses. Dare I say that there are none so deaf as those who will not hear? I think the House did not particularly hear that those impact assessments did not exist, and therefore rode over the information that was given from the Dispatch Box.

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

I am grateful to the hon. Gentleman for being so generous. I brought up the issue with the Secretary of State in October 2016, when he told me:

“We currently have in place an assessment of 51 sectors of the economy.”—[Official Report, 20 October 2016;
Vol. 615, c. 938.]

The hon. Gentleman knows as well I do that there are only 39, and they do not look like assessments of sectors of the economy. Will he join me in asking Front Benchers whether they will clarify their position on that issue?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

The hon. Gentleman is moving away from the Humble Address, which asked for impact assessments, not assessments of the economy by sector. He is asking about another piece of information, which he is quite entitled to do. It is perfectly legitimate to ask for that information, but it in no sense represents a breach of the Humble Address; nor is it covered by amendment 348. Does the hon. Gentleman wish to intervene again? No?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

Let me be bipartisan and take our friend from Scotland first.

Photo of Stewart McDonald Stewart McDonald Shadow SNP Spokesperson (Defence)

In fairness to my hon. Friend Stephen Gethins on the SNP Front Bench, he was referring to his own question, not the Humble Address, so will the hon. Gentleman address his point?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset 2:30 pm, 20th December 2017

Yes, but I was saying that the terms of the question asked by Stephen Gethins and the Humble Address were different. The Humble Address is a binding motion, but although the hon. Gentleman’s questions are very important and deserve to be taken seriously—and treated, as all questions should be, properly and diligently—they are not binding in themselves. It might be a great thing if the hon. Gentleman’s questions were to become binding and have the force and weight of the whole House of Commons behind them, but that is not yet the situation. I will now happily give way to my right hon. Friend.

Photo of Desmond Swayne Desmond Swayne Conservative, New Forest West

We are rehearsing matters that I thought had been thoroughly covered, but the reality is that had the Secretary of State not addressed the requirements of the Humble Address, he would have been guilty of a contempt, and Mr Speaker has made it absolutely clear that that was not the case.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

My right hon. Friend has put the matter so well that I can move on to my final point.

I wish to make a point about the speech of my right hon. and learned Friend the Member for Beaconsfield and Henry VIII powers, where we have come from and where we are going to in relation to new laws being implemented in the United Kingdom. The part on which I agree with him is that we in this House should always treat Henry VIII powers with the deepest suspicion. The job of the House of Commons is to protect the powers of the House of Commons against an over-mighty Executive. Dare I say to those on the Government Front Bench that all Executives seek to be over-mighty? It is in their very nature, whether our side or Labour is in power. Those of us on the Government Back Benches should always remember that we will not be in government forever. [Hon. Members: “Shame.”] I am sorry to say that, but I take a very long view of history, and I can see that at some point in the next millennium we may, heaven help us, have an SNP Government

Photo of Patrick Grady Patrick Grady SNP Chief Whip

We have already got one.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

But not for the United Kingdom as a whole—no, not yet. I will wait for the SNP to put up a candidate in North East Somerset, and we will see how well that goes down.

Photo of Philip Davies Philip Davies Conservative, Shipley

Would my hon. Friend concede that some of us are always in opposition whichever party is in government?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

My hon. Friend puts the point beautifully. That is actually the historical and traditional job of Back-Bench Members of Parliament. We should be here to protect the interests of our constituents and the interests of the constitution, and to hold the Government—of whichever party—to account.

That is why I am in such agreement with my right hon. and learned Friend the Member for Beaconsfield about the undesirability of Henry VIII powers. However, I said I would diverge from him at some point. The point on which I diverge from him is the perhaps slightly academic one about where we have started from. I think it is inconsistent to say that Henry VIII powers exercised by the British Government, subject to the normal parliamentary procedures of this House and another place, are worrying, but that the Henry VIII powers used under the European Communities Act 1972 were not.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

My hon. Friend makes a perfectly reasonable point, and there is an argument that this House should not concede Henry VIII powers without very good reason indeed. I suggest that the difference is that the 1972 Act carried the clear implication that this was a necessity in order to meet our international obligations. The question I have asked this afternoon is whether these powers are required to meet some domestic necessity. My hon. Friends on the Front Bench may be able to reassure me that they are, but as the powers are so extensive, it is right that we should question them.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

It is always right that we should question such powers. That issue was about meeting our international obligations, but we volunteered to take on those international obligations by treaty without allowing the House to have the final say on the regulations that would come in. A political decision was made for the convenience of the then Government to do this in such a way to get that treaty agreed, but that was just as much a power grab from this House as what is currently proposed. Indeed, to my mind, it was a very much greater power grab because of the way in which laws in the European Union are introduced. The key is not co-decision making, which we have heard about—that is marginal, and came in at a later stage—but the fact that the right to present a new law rests with the Commission, which is the least democratic part of the European Union.

One of the glories of this House is that any right hon. or hon. Member may at any point, after the first few weeks of a new Session, go up to the Public Bill Office and seek to bring in a new Bill. The right of initiation of legislation lies with all of us, not just people who win the lottery or have ten-minute rule Bills. It lies not just with the Government; any right hon. or hon. Member has that right. It is such an important part of our ability to represent our constituents and to seek redress of grievance. The highest form of redress of grievance is an Act of Parliament; interestingly, Acts of Parliament emerged at the beginning of the 14th century from the presentation of petitions to this House that Members then turned into Acts. This is at the heart of our democratic system, but it was immediately denied by the basis on which laws are introduced within the European Commission.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Digital, Culture, Media and Sport) (Arts and Heritage)

The hon. Gentleman is of course right about the ability of Members to introduce a Bill, but glorious though the right is, is he not slightly exaggerating its force? Given the Executive’s control of the timetable, the likelihood of any Bill introduced in such a way being able to make it into law is pretty minimal.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

The likelihood is minimal because it would be fairly chaotic if we had 650 Bills coming through each day—understandably, there has to be a means of making this House work; none the less, we have such a right. When Members bring forward really important Bills that are of fundamental significance and have support across the nation, they do eventually get through, despite the efforts of my hon. Friend Philip Davies, as well as of me and one or two others, to talk out rotten Bills. When Bills are of high quality and have support, they do get through, and that is very important.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Digital, Culture, Media and Sport) (Arts and Heritage)

Will the hon. Gentleman name one that has got through via that procedure during the last Session?

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

In the last Parliament, we got through a major reduction in prejudice against people suffering from mental health disorders—for example, allowing them to become Members of this House. That very important Act of Parliament was carried by pressure from individual Members. Nobody sought to talk it out—it had very widespread support—and it was taken through by a Back Bencher.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

Does my hon. Friend agree that the Autism Act 2009 was such an example, as was the legislation creating marine protection zones that was brought in by our former hon. Friend the Member for Uxbridge and South Ruislip.

Photo of Jacob Rees-Mogg Jacob Rees-Mogg Conservative, North East Somerset

My right hon. and learned Friend is absolutely right. Such Bills do come through—[Interruption.] Kevin Brennan is saying that they were not presentation Bills. It is fair to say that a presentation Bill very rarely gets through in the first instance, but it can often go on to become a ballot Bill or to receive Government support, so it is the beginning of the process. I certainly would not advocate that each of us should have the right to get a Bill made into law, but we have the right to initiate the process. That is at the heart of the democratic process, but the EU lacks such a system, which is why the 1972 Act created a worse set of Henry VIII powers than the set now being created. Overall, however, as it is nearly Christmas, I am in happy agreement with my right hon. and learned Friend the Member for Beaconsfield.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

I have the results of today’s deferred Divisions—I know you have all been anxiously awaiting them—which I will now announce. In respect of the question relating to local authorities (mayoral elections), the Ayes were 317 and the Noes were 231, while of those Members representing constituencies in England and Wales, the Ayes were 293 and the Noes were 221, so the Ayes have it. In respect of the question relating to combined authorities (mayoral elections), the Ayes were 317 and the Noes were 231, while of those Members representing constituencies in England, the Ayes were 285 and the Noes were 195, so the Ayes have it.

[The Division lists are published at the end of today’s debates.]

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

It is always a little daunting to follow Mr Rees-Mogg. I thank him for his gracious offer that an SNP politician might wish to stand in his constituency, but I can inform him that the only Scottish politician looking for a safe seat in England at the moment is the leader of the Conservative and Unionist party. The rest of us are quite happy with our seats in Scotland, safe or otherwise.

I wish to speak to amendments 77 and 76, in the name of my right hon. Friend Ian Blackford and other SNP Members. Clause 13 and schedule 5 deal, as we have heard, with rules relating to publication and rules of evidence. SNP Members are less concerned with the rules relating to publication, although I would be interested to hear the Government’s response to the pertinent questions raised, as always, by Mr Grieve. We are very happy with the idea—in the terms of schedule 5, paragraph 1—that:

The Queen’s printer must make arrangements for the publication of” these relevant instruments, but we share the concern that he very ably articulated as to why there might be certain instruments that would fall into a category that should not be published. It seems most odd.

We also welcome the amendments tabled by Mr Leslie and in the name of the Labour Front Bench. We absolutely support any amendments that seek to achieve transparency and clarity. We also very much support amendment 348, which seeks to revisit the issue of impact assessments, because we share the concerns that were expressed from the Labour Front Bench, and by others who have intervened, about the sorry saga of the impact assessments. As my hon. Friend Stephen Gethins explained in relation to a question he asked in 2016, there were occasions when the impression was given on the Floor of the House that economic impact assessments existed, no matter what might have been said in response to the Humble Address.

It is also worth bearing in mind that the Humble Address related only to sectoral impact assessments. It did not relate to the impact assessment that has been made in relation to the Scottish economy. It is worth reminding ourselves that both the Secretary of State for Exiting the European Union, in response to a question I asked when he gave evidence before the Exiting the EU Committee, and the Secretary of State for Scotland, in response to questions raised by Christine Jardine, said that impact assessments in relation to the Scottish economy do exist, and that they will be shared with the Scottish Government.

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

My hon. and learned Friend makes a powerful point. Will she put it to the Minister that the Secretary of State for Exiting the European Union told me in October 2016 not only that there were 51 sectors rather than 39—there was some confusion, and I thank Mr Rees-Mogg for giving way to me on that—but that there was also an assessment that was promised to the Scottish Government back in 2016?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

Indeed. And more recently than 2016, following up on that, evidence has been given to two Select Committees of this House that impact assessments relating to the Scottish economy exist, and will be shared with the Scottish Government. I can tell the House that they have not as yet been shared with my colleagues in the Scottish Government, and we have not as yet had any clear backtracking as to the existence of these documents. No doubt that is something that will be pursued in the new year, but I very much welcome the commitment of Labour Front Benchers to continuing to pursue the issue of impact assessments because, as others have said, either they exist and they are not being shared with us—and we know that they do exist in relation to Scotland because we have been told that by two Government Ministers—or they have not been carried out, which is an extraordinary dereliction of duty by the Government if they care at all about protecting the economies of the various nations of these islands.

In relation to the SNP’s amendments to clause 13 and schedule 5, we are very much indebted to the expert assistance we have received from briefings prepared by the Law Society of Scotland for the benefit of all SNP Members, and we have worked closely with the society to inform some of our more legalistic amendments. Those amendments—76 and 77—stem from written evidence that the society has provided to various Committees of this House and the other place.

In the society’s response to the White Paper “Legislating for the United Kingdom’s Withdrawal from the European Union”—which many of us have now forgotten about; it seems a lifetime ago—the society recommended that once the process of identifying European Union-derived UK law was complete, that body of law should be collected in an easily identifiable and accessible collection. We believe that schedule 5, paragraph 1 is a significant step forward in that direction, and will be of significant assistance to those to whom this body of law will apply and their advisers, but we agree with the hon. Member for Nottingham East that matters would be assisted if they were published in plain English. We also agree with the right hon. and learned Member for Beaconsfield that the Government need to tell us why they want to give themselves the power to withhold publication of some of these instruments. It is hard to imagine what reason there could possibly be.

In connection with schedule 5, part 2, which concerns the rules of evidence, we are in accord with paragraph 3, that where it is necessary in legal proceedings to decide a question as to,

“the meaning or effect in EU law of any of the EU Treaties or any other treaty relating to the EU, or the validity, meaning or effect in EU law of any EU instrument,” it is very important that that should be treated as a question of law rather than a question of fact. We think that is a sensible provision, which will save time and money and the expense of clients in litigation concerning the EU or the validity or meaning of EU instruments. I shall return to the issue of how retained EU law is interpreted in a moment.

Like the right hon. and learned Member for Beaconsfield, in relation to schedule 5, paragraph 4, we question why it is necessary to give Ministers quite such sweeping powers. I would also be very interested to hear from the Solicitor General why, if quite such sweeping powers are to be granted, they are tucked away in a schedule, not a clause.

Returning briefly to schedule 5, part 2, paragraph 3 and the issue of how retained EU law is interpreted, I and my friends on the SNP Benches continue to share a number of concerns, which I think are widely shared in the House, about the Bill’s lack of clarity in relation to how retained EU law will be interpreted by courts in the United Kingdom after exit day. They are not just concerns shared by MPs. They are shared by the judiciary, as we have heard in other hon. Members’ speeches and in evidence before various Committees of the House. It all really goes back to clause 6, which deals with interpretation of retained EU law, and with the rules governing the extent to which UK courts may have regard to decisions of the European Court of Justice after exit day.

Much earlier on in Committee—I think it was day 2 —we debated an amendment that I tabled to clause 6(2), which was rejected only narrowly. I was very grateful for cross-party support for that amendment; it was just unfortunate that the Government did not support it. But I do believe that the Government will have to return to that issue, because even if they do not return to it on Report in this House, I have no doubt that it will be returned to in the other place, particularly in the light of evidence that was given to the House of Lords EU Justice Sub-Committee by a panel of former senior judges on 21 November. My amendment 137 sought to provide that:

“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision”. of the European Court. It was defeated only narrowly. But very interestingly, now that we have reached the end of the first phase of the negotiations, the Prime Minister and the UK Government, in relation to the protection of EU citizens’ rights, have signed up to a very similar wording. They have said that courts in the UK

“shall…have…regard to relevant decisions of the Court of Justice of the EU” in future in relation to citizens’ rights.

I am quoting from the joint report on the progress of negotiations, which states:

“The Court of Justice of the European Union is the ultimate arbiter of the interpretation of union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date”.

The UK Government have therefore now accepted that, in relation to citizens’ rights, UK courts will continue to have regard to relevant decisions of the Court of Justice of the European Union. I urge them to reconsider, in relation to all our rights and all our rights in retained EU law, whether the courts of the United Kingdom should be able to pay due regard to relevant decisions of the CJEU in future.

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle 2:45 pm, 20th December 2017

The hon. and learned Lady is making a very interesting speech. Retained rights for EU citizens perhaps go that little bit further, because they are specific to EU citizens in this country—hence the reference, perhaps with a little more certainty, to the European Court of Justice—but she is seeking to imply that same strict standard for all retained EU law.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

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

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

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

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

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

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

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

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle

In a former career, I would take cases and seek direction from the courts on what they believed the law, or previous cases, were intending. Courts and judges are used to exercising discretion. Clause 6(2) makes it quite clear that they may do so if they consider it appropriate, in the same way they can refer to Commonwealth judgments if they believe that to be appropriate. I do not recognise the picture of the judiciary that the hon. and learned Lady is painting.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I recognise it, because in my former career I appeared regularly in the Supreme Court of the UK and the supreme courts of Scotland. The hon. Gentleman may not recognise my concerns, but if he shares my professional background, he should recognise the concerns of senior members of the serving judiciary and the retired judiciary. These are very real concerns. They are telling us that clause 6(2), as currently drafted, on how they will be directed to interpret retained EU law after exit day, does not give them the clarity they desire and would leave in their provenance issues that are political and economic, and factors that, to use Lord Neuberger’s words, are rather unusual for a judge to have to take into account. This is complicated.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

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

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

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

“is not clarified.”

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

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

Photo of Robert Buckland Robert Buckland The Solicitor-General 3:00 pm, 20th December 2017

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

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

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

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

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

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

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

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

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

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

I am, however, sympathetic to the spirit of the new clause. The Government will explain how we correct the law so that it works in our domestic statute book. As Members will know, it is established practice for an explanatory memorandum to accompany every statutory instrument that is made, and that is what will happen in this instance. Last week, a Government amendment was agreed by the House to provide that a Minister must make statements containing certain information before making statutory instruments under clauses 7 to 9. It includes a requirement that statements include additional information explaining what any relevant EU law did before exit day, and what changes we will make in that law and why. I think that that, in large measure, deals with the hon. Gentleman’s concerns and helps to provide clarity.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East 3:15 pm, 20th December 2017

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

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

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

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

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

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

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee

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

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

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

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

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

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

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

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

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee

I agree with my hon. Friend.

The sector has said that World Trade Organisation rules and current EU third country tariff schedules will bring a 4.5% tariff on components and a 10% tariff on cars; I think we already knew that. We were also informed that Japanese and Ford motor manufacturing make the UK their base because of access to the EU market. There is a major statement and recommendation there: it will be devastating for motor manufacturing in the UK if we do not continue to have access to the EU markets.

We were also told that automotive is a high-volume, low-margin industry operating a just-in-time process. It was said that customs checks would add to administrative costs, delay production and shipments and create the need for increased working capital and that they would increase the cost of production in the UK. Concern was expressed about access to key engineering staff if higher immigration controls were in place, exacerbating skills shortages where a significant skills shortage already exists, with 5,000 job vacancies, especially in engineering design and production engineering.

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee

No, I am going to carry on, because others need to get in.

Turning to the steel sector, I found what I already knew: Wales employs 5,000 people in the steel industry, and the knock-on effect on the steel industry in Port Talbot, Neath, Swansea, Ogmore and Bridgend will be devastating if those jobs are affected in the slightest. I did not waste my time going through all the Government nonsense again; I went straight to the sectoral views. The view of the steel sector was very blunt, just like the people who work in it, and I like that. It stated that policies and practices should remain as closely aligned to the EU as possible. Have I heard the Government promise that at any time during these debates? No.

The sectoral view asked that we retain the UK’s existing trade relationship through the EU’s free trade agreement and similar preferential trading agreements. I have seen no promise of that either. It said that this should be a priority over the negotiating of a new free trade agreement. It also said that if we are to minimise the disruption that Brexit will entail, it will be vital that UK trade policies and practices remain as closely aligned to the EU as possible. The sector would not be happy to learn about the bonfire of the vanities proposed under the Henry VIII clauses in the Bill. My local employers and workforce need to know in advance of our exit that the Government have taken into account the economic and financial impact on their lives, their jobs and the future of their children before modifying or abolishing anything.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

The Government say that they have carried out significant impact assessments covering the Welsh economy, but they have not been shared with the Welsh Government. What are they, and do they actually exist?

Photo of Madeleine Moon Madeleine Moon Chair, Defence Sub-Committee

I took that intervention from my hon. Friend because she is a Welsh colleague, and she and her constituents will also be affected by these job losses in automotive and steel. This was nothing to do with rejecting an intervention from the Conservative Benches; it was about giving the Welsh voice prominence in this place, just for a change. Welsh workers are deeply affected by these industries, and it is appalling that the Welsh Government have not been given the information that they need to do what they can. It is equally appalling that we as elected Members are not being given the information that we need to work to protect the people we were elected to protect. The typically patriarchal attitude towards the workforce revealed by the impact assessments that have been done so far is deeply worrying. I do not think that any in-depth analysis of the financial impact has been done.

Interestingly, I was in the USA last week at a defence conference, during which the question of the Transatlantic Trade and Investment Partnership and a potential free trade agreement with the UK came up. A very senior member of the Trump Administration told us that the US had an ambition for access to all services in each other’s markets and that it was particularly keen to have access to the UK’s financial services. We were told, however, that it would not be as keen if the US was subject to the European Court of Justice, because it would not want its companies to have such judicial oversight. I think that tells us everything we need to know about the importance of our remaining in the customs union and the single market and being subject to the European Court of Justice. That is how we will protect not only our workforce but the consumers who buy the products that they produce.

Photo of Richard Graham Richard Graham Conservative, Gloucester

It is a pleasure to follow Mrs Moon, who has spoken so well today, and indeed throughout these debates. This is the first time that I have risen to speak on the European Union (Withdrawal) Bill, and I do so because I wish to add a little to what has already been said about amendment 348. I do not intend to revisit the arguments put forward in the previous Humble Address, or the decisions taken by our Select Committee. That issue has been dealt with, but since the shadow Minister hinted that the Opposition would come back to it, I want to focus on the substance of the amendment and on why I disagree with it so strongly.

It is my belief that what amendment 348 seeks to achieve is without precedent in the history of negotiations by our country. It would require the Government to publish their economic impact assessments of the policy options for withdrawal from the EU. However, the missing words at the end are “during our negotiations on withdrawal from the EU”. Those missing words matter, because this is a particularly important negotiation for our nation—nobody is any doubt about that—and because this is a particularly delicate time. The Government start negotiations on the implementation period and on our future relationship with the EU soon after the new year. On the other side of the negotiating table, the EU has made it absolutely clear that it will not be publishing all its research. We will therefore certainly not see any published analysis, let alone any impact assessments relating to, for example, what no deal would mean for specific ports in northern Europe, or to any potential drop in GDP for the town of Calais.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Let me just develop my argument first, if I may.

It is therefore a curious affair that we should expect our own negotiating side to lay out in great detail what our own negotiating position should be. I tried to find precedents in our negotiating history, and I did some analysis of negotiations in which I was involved in the later stages. Those were the negotiations leading to the joint declaration on the future of Hong Kong in the early 1980s. Some Members will remember that there was considerable concern at the time about the economic future of Hong Kong under the sovereignty of Communist China, and therefore about confidence—above all, economic confidence—in the territory. Were any economic analyses of the different scenarios published? No; not least because, had they been published, all of them would surely, at that time, have made the assumption that any change in the existing arrangements would have been negative to the economy of Hong Kong, and therefore probably to the UK as well.

In fact, today—20 years after the handover—whatever our concerns might be about the commitment to some of the freedoms guaranteed under the joint declaration, Hong Kong has surely made significant economic progress. My point is that any analysis at that time would have been done on the consensus assumptions of the early 1980s, which would have been substantially wrong and, if published, would almost certainly have been an impediment to the sensible, pragmatic, diplomatic negotiating compromise that was then achieved to everybody’s benefit. In the same way today, the range of assumptions behind trying to calculate which future road in the negotiations will be most economically beneficial makes that almost impossible to calculate, so let me give a few examples of the sort of questions that would have to be considered.

The latest statistics show that our current trade is 43% with the EU and 57% with the rest of the world. If our relationship with the EU did not change—if we were not leaving the EU—what would those figures be in five or 10 years’ time? The figure for EU trade has declined, but would that continue or reverse? Would the strong predictions for growth in Asia prove optimistic and accurate or would they underestimate what will happen? Right now, we are exporting more goods than services, which was unimaginable five years ago, but will that continue? How would different trends in goods and services affect our future trade across the world? Which countries would we benefit more from trading with if our goods were doing better than our services or vice versa? When we leave the EU, with whom will we reach free trade agreements? FTAs are just one of the tools available to us, so what other trading arrangements will we set up? How long will each of those agreements take, and what will their economic impact be?

Looking at south-east Asia—the area where I work for the Prime Minister—if we want to, will we be able to move on individual free trade agreements faster than the current progress of the EU? What about the US—the biggest of them all? We know that the US executes 25% of its trade with the European Union with the UK alone and that 50% of its financial services trade is with the UK. Its interest in having a separate FTA with us will largely depend on the degree to which we offer something different or the degree to which we converge, have equivalence or have mutual recognition of the regulations and laws in the EU. Given what I have just outlined, how can we possibly know the economic impacts of various aspects of future potential scenarios with the EU?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe), Shadow SNP Spokesperson (Exiting the European Union)

I am grateful to the hon. Gentleman for giving way. He seems to be arguing not for or against the publication of information, but against the whole idea of any kind of economic impact assessment at all, which makes me wonder what the Chancellor’s last Budget statement was about. If he is being consistent, does he also think that none of the 16 economic impact analyses published by the Government in the run-up to the Scottish independence referendum were worth the paper they were written on? They were also based on surmise and speculation.

Photo of Richard Graham Richard Graham Conservative, Gloucester

I am grateful to the hon. Gentleman because, as a historian, I think he raises an interesting question: to what extent have economic forecasts ever been accurate? He might wish to study the assessments of the Office for Budget Responsibility, which have on the whole been consistently gloomy over the seven years that I have been in the House. He would be hard pushed to find a record of any Government being successful in economic forecasting, because all sorts of assumptions have to be made. As a previous Prime Minister once remarked, it is so often in life that events shape things, rather than our own forecasts of what the future might look like.

The hon. Gentleman helpfully takes me back to my point, which is that all these forecasts and assessments of potential impacts depend on a huge number of variables. They will alter by individual company, by sector, by technology and by much else besides. Whatever any Government trying to deliver such an assessment could come up with in terms of the net benefits for different scenarios, they will inevitably prove inaccurate. Therefore, arriving at impact assessments in the definition that the Government use—with clearly quantified conclusions and benefits—would almost certainly prove misleading.

To publish such assessments is to share them with every negotiating partner of the UK and would be a huge own goal. Instead, we should expect the Government to continue doing what they have been doing: setting out their strategy in broad terms, as the Prime Minister did in her Lancaster House and Florence speeches. In due course, a third speech may be needed to shed light on what our Government feel about those important terms, “convergence”, “alignment”, “equivalence” and “mutual recognition”; to highlight the benefits of our services to us and to Europe; and to say why a broad and deep partnership will benefit both us and Europe, including in regard to the sectors of defence, security, research, aerospace, nuclear energy, development, academia and many others besides.

I urge the Government to resist commissioning an economic impact report and analyses of different scenarios under their negotiating strategy; likewise, I urge the House to resist asking for that. Neither will help those who are charged with negotiating, and delivering for our country, a new relationship with the EU that will benefit citizens of Europe, wherever we live. I say that as someone who has tried to defy the unhelpful terms used earlier by the shadow Minister, Paul Blomfield, for whom I otherwise have considerable respect.

I voted remain because of the short-term risks to my constituents and our country. I voted for article 50 to honour the result of the referendum. I support the Prime Minister because in these negotiations I trust her to steer us between the exaggerated descriptions of Hades and nirvana. I do not fall into the category of Brexiteer, extreme Brexiteer or extreme non-Brexiteer; I fall into the category of a Member of Parliament trying to help his constituents through an incredibly difficult period. In that context, I am grateful that the Opposition are not going to press amendment 348, and hope they never come back to it.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough 3:45 pm, 20th December 2017

I rise to speak in favour of amendment 348 and new clause 21. The vote to leave the European Union was an unanticipated shock to the UK economy that increased uncertainty and reduced our country’s expected future openness to trade, investment and immigration with our neighbouring partners, the EU. The pound depreciated by approximately 10% immediately after the referendum. The depreciation raised inflation by increasing import costs of both final goods and intermediate inputs.

Today, according to Citibank analysis, long-run inflation expectations are up to 3.3%, but by June this year the Brexit vote was costing the average household £7.74 per week through higher prices. That is equivalent to £404 per year. Higher inflation has also reduced the growth of real wages; that is equivalent to a £448 cut in annual pay for the average worker. To put it another way, the Brexit vote has already cost the average worker almost one week’s wages owing to higher prices—and we have yet to leave the EU. Amendment 348 refers to impact assessments. We need clear impact assessments to ascertain how such things as well as hard-fought workers’ rights, shared values and environmental protections will be safeguarded.

Several promises were made. Post Brexit, UK Governments will be expected to fulfil the promises made during the referendum campaign. Immigration was, without doubt, a major reason for the result, but at least half of immigrants to the UK every year are from south Asia, Africa and the Caribbean, and they are unaffected by EU laws. It would also be difficult to reduce the number of EU citizens in the UK unless there was a misguided programme to expel them and the UK was prepared to countenance similar expulsions of its citizens from the continent. The challenge will be not how to limit in-flows—something that featured so prominently in the leave campaign—but rather how to sustain the much needed flows of EU nationals to fill jobs in sectors such as agriculture, services and construction, an industry I have been involved in for over two decades.

Photo of Kate Hoey Kate Hoey Labour, Vauxhall

I am following my hon. Friend carefully. Does he agree that my constituents’ relatives from the Caribbean should have the same opportunity to come to this country as those from the European Union, who can come here by right? That is part of the reason why many people from ethnic minorities voted leave: they saw that there would be a fair immigration system, not one that was biased towards 27 other countries.

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

I have listened closely to my hon. Friend, but we will need to wait until the immigration Bill is introduced to see exactly how we will be affected.

Many British voters believe that by favouring Brexit they were voting for greater spending on the national health service and the rest of the British welfare state. Those voters will become even more dissatisfied when they discover that Brexit will not, in fact, provide anything close to the additional £350 million a week for our NHS that was claimed.

New clause 21 refers to clear explanatory statements about what is happening across this entire process. After Brexit, the UK and devolved Governments will need to carry out many functions that are currently the responsibility of Brussels, including everything from customs checks to determining agricultural subsidies. Before that happens, however, much of the civil service will be consumed by managing the leaving process between now and the end of any transition period.

Ultimately, the UK is undertaking an enormous administrative challenge in a very short space of time. The Government are reportedly seeking to employ an extra 8,000 staff by the end of the 2018 to help manage the process, with Departments recruiting heavily in recent months. However, it should be noted that they are starting from a very low base. Public sector employment, as a share of people in work, was below 17% in June 2017, the lowest level since records began in 1999, which suggests that the civil service will be unable to manage Brexit alone and will therefore increasingly need to rely on external actors to undertake many of its functions.

On amendment 348, if the Government cannot even compile impact assessments or sectoral analyses—take your pick—in “excruciating detail,” as the Secretary of State for Exiting the European Union said, how will they effectively manage the process? Our Parliament should be sovereign, and collectively we all need to take back control, but the implications for democratic accountability will be quite profound if and when outsourced services fail to meet public expectations.

If the 3 million EU nationals currently in the UK decide to apply to remain after Brexit and those applications are not processed properly by a private contractor, for example, who will be held accountable when people are wrongly forced to leave? On top of that, the sheer complexity of the Brexit process means there will be a range of convenient scapegoats whom the Government could blame when things go wrong.

Photo of Angela Smith Angela Smith Labour, Penistone and Stocksbridge

I draw my hon. Friend’s attention to the National Audit Office report, published yesterday, on the Brexit work of the Department for Environment, Food and Rural Affairs. It is already clear that the Department is under pressure, and it is making significant use of external consultants. With no promise of finances, much of the work programmed for Brexit is at risk. Does he agree that could be a significant problem?

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

My hon. Friend corroborates what I have been trying to outline.

Rather than taking back control of public services, Brexit is likely to result in more public services being run at arm’s length from directly elected representatives, who will seek to avoid being held responsible for poor performance. It is also vital that our trade agreement with the EU does not prevent economic growth and the growth in jobs and prosperity that comes with exporting our goods

New clause 21 is all about information, but where is the information for businesses and workers in my Slough constituency? Large businesses in my constituency such as Mars, the confectionary producer, have interconnected sites and factories across Europe, making up an integrated network in which raw materials are moved across borders. Finished products made in one country are packaged, distributed and sold in others. Representatives of Mars are concerned about the return of barriers to the supply chain and about the possible impact on jobs. During visits to their factory in my constituency, I was told:

“It is a fact that Europe after Brexit will remain a critical market for UK exports and likewise the UK will remain an important market for goods produced and manufactured in other European states. There can be no economic advantage from either side restricting trade with a large market situated on its doorstep. In simple terms, if the UK and the EU fail to agree on a new preferential deal, it will be to the detriment of all.”

Photo of Ian Paisley Jnr Ian Paisley Jnr Shadow DUP Spokesperson (Communities and Local Government), Shadow DUP Spokesperson (Culture, Media and Sport)

Does the hon. Gentleman accept that a large company such as Mars is able to import cocoa, chocolate and nuts from African and Latin American states and get over all the trade complexities in that import business, so it is very easy for it to get over some minor issues that he is concerned about with regard to the EU trade?

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

I thank the hon. Gentleman for that, but I would point out to him that we already have trade agreements, which is why in a previous exchange in Parliament I pointed out that we need to ensure that we have increased access arrangements and that we continue with the existing access agreements for developing countries.

Photo of Tom Brake Tom Brake Liberal Democrat Spokesperson (International Trade), Liberal Democrat Spokesperson (Exiting the European Union)

Does the hon. Gentleman share my concern that Mars is clearly able to make an assessment of the impact of the different types of economic arrangements we might have with the EU after we leave, whereas the Government are not? We heard this in an intervention from Richard Graham, who is no longer in his place; he completely disregards any value in impact assessments whatsoever. Why can Mars do it but the Government cannot?

Photo of Tanmanjeet Singh Dhesi Tanmanjeet Singh Dhesi Labour, Slough

I thank the right hon. Gentleman for making that intervention, because if Mars can do it, I am sure we can do it within Parliament. The Government’s approach is, in essence, keeping business in the dark.

In conclusion, a cliff edge scenario, with us sleepwalking into no deal, which is where this Government seem to be heading, would be severely damaging to us and our economy. We need to change course and avoid this fate of no deal. A starting point on that would be clear and detailed impact assessments.

Photo of Chris Leslie Chris Leslie Labour/Co-operative, Nottingham East

I thank the House for going into much more detail than we perhaps initially expected on these clauses and amendments. It is has been a worthwhile investigation of schedule 5. Mr Grieve, in particular, raised pertinent points about rules of evidence, and we have heard good speeches from many of my hon. Friends, too. The Minister says that schedule 5 allows those explanatory memorandums to be produced by Government to help the House to sift through these potentially 12,000-plus statutory instruments that are going to come, so I will take his word on that and we will hold him to account on it. In those circumstances, and as we have many other issues to discuss, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Schedule 5 agreed to.

New Clause 13