Retaining Enhanced Protection

European Union (Withdrawal) Bill – in the House of Commons at 1:08 pm on 17th January 2018.

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“(1) A Minister may use regulations provided for by an Act of Parliament other than this Act to amend, repeal or modify retained EU law if, and only if, the use of the regulation is necessary to maintain or enhance rights and protections.

(2) The procedure in subsection (3) applies if a Minister of the Crown proposes to use regulations provided for by Acts of Parliament other than this Act to amend, repeal or modify retained EU law in the following areas—

(a) employment entitlement, rights and protection,

(b) equality entitlements, rights and protection,

(c) health and safety entitlement, rights and protection,

(d) consumer standards, or

(e) environmental standards and protection.

(3) A Minister of the Crown must—

(a) produce an explanatory document which must explain why using the regulation is necessary to maintain or enhance rights and protections,

(b) consult for a period of no less than 12 weeks after the publication of the explanatory document with—

(i) organisations, and persons who are likely to be affected by the proposals, including representative bodies;

(ii) the Law Commission, the Scottish Law Commission or the Northern Ireland Law Commission in such cases as the Minister considers appropriate; and

(iii) where the proposals relate to the functions of one or more statutory bodies, those bodies or persons appearing to the Minister to be representative of those bodies,

(c) give details of any representations received under the consultation provided including Ministerial responses.

(4) Any regulations to which this section applies may be made only if they have been approved by a resolution of each House of Parliament.”—(Matthew Pennycook.)

This new clause would ensure that important EU-derived employment and other rights can be amended only by primary legislation, subordinate legislation made under this Act, or subordinate legislation which has been approved through an enhanced scrutiny procedure.

Brought up, and read the First time.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

With this it will be convenient to discuss the following:

New clause 2—Meaning of Withdrawal Agreement—

“It shall be the objective of Her Majesty’s Government to ensure that the arrangements for the UK’s withdrawal from the EU which comprise the “withdrawal agreement” specified in subsection (1) of section 14 shall include full, comprehensive and sufficient detail as if it were a legal instrument capable of acceptance and deposit as an international trade agreement at the World Trade Organisation, with detailed agreements on the following aspects of the future relationship between the United Kingdom and European Union including—

(a) geographical scope of application,

(b) regulatory cooperation,

(c) national security,

(d) cross-border trade in services,

(e) market access,

(f) tariff arrangements,

(g) tariff rate quotas on all products,

(h) customs duties on imports,

(i) duties, taxes and charges on exports,

(j) fees and charges,

(k) import and export restrictions,

(l) provisions concerning anti-dumping and countervailing measures,

(m) transparency,

(n) sanitary and phytosanitary measures,

(o) trade conditions,

(p) customs valuation,

(q) subsidies,

(r) dispute settlement and mediation,

(s) establishment of investments,

(t) non-discriminatory treatment,

(u) expropriation,

(v) enforcement of awards,

(w) mutual recognition of professional qualifications,

(x) cross-border financial services,

(y) prudential regulatory alignment,

(z) maritime transport services,

(aa) telecommunications,

(bb) electronic commerce,

(cc) competition policy,

(dd) state enterprises and monopolies,

(ee) government procurement,

(ff) intellectual property,

(gg) trade and sustainable development and the environment,

(hh) trade and labour standards and employment conditions and

(ii) taxation.”

This new clause would make it the objective of HM Government that the withdrawal agreement sought prior to exit day should include proposals setting out the full details expected of a comprehensive international trade agreement.

New clause 3—Republic of Ireland and Northern Ireland—

“(1) Nothing in the provisions made under section 8 or section 9 of this Act shall authorise any regulations which—

(a) breach any of the obligations of Her Majesty’s Government made under the Belfast Agreement implemented in the Northern Ireland Act 1998 (which made new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland), or

(b) create hard border arrangements between Northern Ireland and the Republic of Ireland, or

(c) undermine the full alignment of the United Kingdom with the rules of the European Union Internal Market and the Customs Union which support North-South cooperation, the all-island economy and the protection of the Belfast Agreement.

(2) Subsection (1)(c) shall apply unless Her Majesty’s Government, the Government of the Republic of Ireland and the European Union agree alternative specific solutions which can continue to address the unique circumstances of the island of Ireland, the obligations of the Belfast Agreement and the avoidance of a hard border arrangement between Northern Ireland and the Republic of Ireland.”

This new clause would ensure that the aspects of the Phase 1 agreement between the UK and the EU regarding the Republic of Ireland and Northern Ireland are brought into UK law.

New clause 4—Financial Settlement—

“The Chancellor of the Exchequer shall publish, within one month of Royal Assent of this Act, the full details of the methodology agreed between Her Majesty’s Government and the European Union as set out in the “Joint Report from the Negotiators on Progress During Phase 1” which was published on 8 December 2017.”

This new clause would ensure that the agreed methodology for calculating the financial settlement between the UK and the EU set out in the Joint Report from the Negotiators of 8 December 2017 are published and brought into the public domain.

New clause 5—Trade in Services

“It shall be the objective of Her Majesty’s Government, in negotiating a withdrawal agreement, to secure the same rights, freedoms and access available to UK businesses trading in services as exists through the United Kingdom’s membership of the European Union, as if section 1 of this Act were not brought into effect.”

This new clause would ensure that the negotiating objectives of Ministers would be to secure the same benefits for service sector trading businesses after exit day as are available under the existing Single Market and Customs Union arrangements by virtue of membership of the European Union.

New clause 6—Alteration to the notification under Article 50(2) of the Treaty on the European Union

“Her Majesty’s Government shall publish a summary of the legal advice it has received in respect of the ability of the United Kingdom to extend, alter or revoke the notification, under Article 50(2) of the Treaty on the European Union, of the United Kingdom’s intention to withdraw from the EU.”

This new clause would require Ministers to place in the public domain a summary of the legal advice they have received concerning the options available for the United Kingdom in respect of the notification made under Article 50 of the Treaty on the European Union.

New clause 10—Governance and institutional arrangements—

“(1) Before exit day a Minister of the Crown must make provision that all powers and functions relating to any right, freedom, or protection, that any person might reasonably expect to exercise, that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day, and which do not cease to have effect as a result of the withdrawal agreement (“relevant powers and functions”) will—

(a) continue to be carried out by an EU entity or public authority;

(b) be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom; or

(c) be carried out by an appropriate international entity or public authority.

(2) For the purposes of this section, relevant powers and functions relating to the UK exercisable by an EU entity or public authority include, but are not limited to—

(a) monitoring and measuring compliance with legal requirements;

(b) reviewing and reporting on compliance with legal requirements;

(c) enforcement of legal requirements;

(d) setting standards or targets;

(e) co-ordinating action;

(f) publicising information.

(3) Responsibility for any functions or obligations arising from retained EU law for which no specific provision has been made immediately after commencement of this Act will belong to the relevant Minister until such a time as specific provision for those functions or obligations has been made.”

This new clause would ensure that substantive rights and protections cannot be removed by the “back door”, and that the institutions and agencies that protect EU derived rights and protections are replaced to a sufficient standard so those rights and protections will still be enjoyed in practice.

New clause 11—Meaningful vote on deal or no deal—

“(1) The Prime Minister must publish and lay before both Houses of Parliament an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of any unratified agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU.

(2) Any agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU may not be ratified unless—

(a) subsection (1) has been complied with,

(b) the House of Lords has considered a motion relating to the unratified agreement,

(c) the House of Commons has approved the unratified agreement by resolution,

(d) the statute mentioned in section 9 (approving the final terms of withdrawal of the United Kingdom from the European Union) has been passed, and

(e) any other legislative provision to enable ratification has been passed or made.

(3) If no agreement has been reached by 31 December 2018 between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union setting out the arrangements for the United Kingdom’s withdrawal from the EU, the Prime Minister must publish and lay before both Houses of Parliament within one month an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of leaving the EU under Article 50(3) of the Treaty on European Union without an agreement.

(4) If no agreement has been reached by 31 January 2019 between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union setting out the arrangements for the United Kingdom’s withdrawal from the EU,

(a) a Minister of the Crown must propose a motion in the House of Lords relating to the lack of an agreement, and

(b) a Minister of the Crown must propose a motion in the House of Commons approving the intention of the United Kingdom to leave the EU under Article 50(3) of the Treaty on European Union without a withdrawal agreement.

(5) Unless the House of Commons approves by resolution after 31 January 2019 the intention of the United Kingdom to leave the EU under Article 50(3) of the Treaty on European Union without a withdrawal agreement, the Prime Minister must either—

(a) reach an agreement before exit day between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU, or

(b) request the European Council for an extension of negotiation under Article 50(3) of the Treaty on European Union, or

(c) rescind the notice of intention under Article 50(2) of the Treaty on European Union to withdraw from the EU given in accordance with the European Union (Notice of Withdrawal) Act 2017 and request the European Council to accept that rescission.’

This New Clause would ensure that the Government assesses the impact of either an agreement or no deal on the UK economy and regions before a meaningful vote, and that if Parliament does not agree to the agreement or to no deal, then the Government must request a revocation or extension of Article 50.

New clause 12—Environmental protection after EU exit—

“(1) Before any exit day, the Secretary of State must publish a report detailing all EU environmental protections, powers and functions.

(2) The report pursuant to subsection (1) shall specify—

(a) all environmental legal protections which derive from EU law;

(b) the powers and functions relating to environmental protection or improvement exercised by EU institutions;

(c) the empowering provisions in EU law relating to those functions; and

(d) any loss of environmental protection, or the monitoring and enforcement of environmental protections, which may arise as a result of the UK’s exit from the EU.

(3) Before any exit day the Secretary of State must publish proposals for primary legislation (the “Draft Environmental Protection Bill”).

(4) The Draft Environmental Protection Bill must include provisions which would—

(a) ensure that the level of environmental protection provided by EU law on the day this Act receives Royal Assent is maintained or enhanced;

(b) make provision to remedy any loss of environmental protection, or the monitoring and enforcement of environmental protections, established in the report pursuant to subsection (1);

(c) create a statutory corporation (to be called “the Environmental Protection Agency”) with operational independence from Ministers of the Crown to monitor environmental targets previously set by EU law relating to environmental protection and other such environmental targets that may be set by Ministers of the Crown and international treaties to which the United Kingdom is party;

(d) require the statutory corporation in (4)(c) to report to Parliament every year on progress in meeting those targets and to make recommendations for remedial action where appropriate;

(e) allow the statutory corporation in (4)(c) to publish additional reports identifying action or omissions on the part of Ministers of the Crown that is likely to result in targets not being met; and

(f) extend to the whole of the United Kingdom.

(5) The Secretary of State must publish annual reports to Parliament on how environmental protections and the monitoring and enforcement of environmental protections have been affected by the United Kingdom’s exit from the EU.

(6) Before publishing a report pursuant to subsection (5) the Secretary of State must hold a public consultation on the effect of leaving the EU on environmental protection.

(7) The Secretary of State must publish and lay before each House of Parliament the first report pursuant to subsection (5) no later 29 March 2020 and each subsequent report must be published no later than the period of one year after the publication of the previous report.”

This new clause would require the Secretary of State to produce a report on the loss of environmental protection as a result of the UK’s exit from the EU, and to prepare an Environmental Protection Bill to make up for any loss of environmental protections, and the monitoring and enforcement of environmental protections. It would also require the Secretary of State to produce annual reports which make an assessment of the impact of the UK’s withdrawal from the EU on UK environmental protection.

New clause 14—Maintaining individual rights and protections—

“(1) When making any agreement under subsection (2), the Secretary of State shall take steps to ensure that UK citizens enjoy standards of rights and protections equivalent to those enjoyed by citizens of the EU under EU law.

(2) This section applies to—

(a) any agreement between the United Kingdom and the EU which prepares for, or implements, the UK’s withdrawal from the EU;

(b) any international trade agreement—

(i) between the UK and the EU, or

(ii) between the UK and another signatory which seeks to replicate in full or in part the provisions of an international trade agreement between the EU and the other signatory.

(3) In relation to any agreement under subsection (2), the Secretary of State will maintain the highest standards of transparency.”

This new clause creates a duty for the Government to ensure that individual rights and protections are maintained to a level equivalent to (although not necessarily the same as) those in the EU when making agreements with the EU or international trade agreements.

New clause 15—Non-regression of equality law—

“(1) Any EU withdrawal related legislation must be accompanied by a statement made by a Minister of the Crown certifying that in the Minister‘s opinion the legislation does not remove or reduce protection under or by virtue of the Equality Acts 2006 and 2010.

(2) In subsection (1) “EU withdrawal related legislation” means—

(a) any statutory instrument under this Act;

(b) any statutory instrument made by a Minister of the Crown wholly or partly in connection with the United Kingdom’s withdrawal from the EU; and

(c) any Bill presented to Parliament by a Minister of the Crown which is wholly or partly connected to the United Kingdom’s withdrawal from the EU.”

This new clause would ensure that legislation in connection with withdrawal from the EU does not reduce protections provided by equality law.

New clause 17—Effect of losing access to EU single market and customs union—

“(1) The Prime Minister must publish and lay before both Houses of Parliament an assessment of the impact on the economy of the United Kingdom, and on each nation, province or region of the United Kingdom, of any unratified agreement (“the Agreement”) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU.

(2) The assessment in subsection (1) must so far as practicable analyse the expected difference in outcomes between the Agreement and continued participation in the EU single market and customs union.

(3) The assessment in subsection (1) must be prepared by the Treasury and must include separate analyses from the National Audit Office, the Office of Budget Responsibility, the Government Actuary’s Department, and the finance directorates of each of the devolved Administrations of the methodology and conclusions of the Treasury assessment.

(4) A statute of the kind mentioned in section 9 (approving the final terms of withdrawal of the United Kingdom from the European Union) may not come into effect until the Prime Minister’s assessment under subsection (1) has been—

(a) debated by each House of Parliament, and

(b) approved by resolution of the House of Commons.”

This purpose of this New Clause is to ensure that the alternative of remaining in the EU single market and customs union is formally considered by Parliament on the basis of an independently validated economic assessment before any statute approving the final terms of withdrawal takes effect.

New clause 18—Consultation on environmental governance and principles—

“(1) Within one month of Royal Assent, the Secretary of State must consult on and bring forward proposals to—

(a) provide that all powers and functions relating to the environment or environmental protection that were exercisable by EU entities or other public authorities anywhere in the United Kingdom before exit day which do not cease to have effect as a result of the withdrawal agreement are fully carried out.

(b) introduce primary legislation to establish a new independent environmental regulator with the purpose of, responsibility for, and appropriate powers to oversee the implementation of, compliance with and enforcement of environmental law and principles by relevant public authorities.

(c) incorporate EU environmental principles in primary legislation as a basis for relevant decision-making by UK public bodies and public authorities.

(d) establish a process for the publication of a national environmental policy statement or statements describing how the environmental principles will be interpreted and applied.

(2) EU Environmental principles include but are not limited to—

(a) the precautionary principle;

(b) the principle that preventive action should be taken to avert environmental damage;

(c) the principle that environmental damage should as a priority be rectified at source;

(d) the polluter pays principle;

(e) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities, in particular with a view to promoting sustainable development;

(3) In carrying out a consultation under this section, the Government must—

(a) consult with the devolved authorities;

(b) be open to responses for at least two months; and

(c) consider the resources and legal powers that the proposed regulator under (1)(b) will need in order to properly carry out its functions.”

This new clause enshrines the Government’s stated intentions in respect of the environmental principles and the establishment of a new independent environmental regulator. It sets out the minimum standards for consultation on these matters.

New clause 20—Citizens’ Jury on Brexit Negotiations—

“(1) A citizens’ jury shall be established to enable UK citizens to be consulted on the progress of negotiations between the UK and the EU on the withdrawal of the UK from the EU, and the approach outlined in UK Government White Papers.

(2) The citizens’ jury shall in total be composed of exactly 1501 persons.

(3) Members of the citizens’ jury shall be randomly selected by means of eligibility from UK citizens on the current electoral register as registered on the date of this Act receiving royal assent, with allocation across the 9 UK Government Regions, Scotland, Wales and Northern Ireland weighted by population, and a stratification plan, with the aim of securing a group of people who are broadly representative demographically of the UK electorate across characteristics including whether they voted Leave or Remain.

(4) The jury will be broken down into individual sittings for each of the 9 UK Government Regions in England, as well as Scotland, Wales and Northern Ireland.

(5) The sittings will be for no more than 72 hours at a time, facilitated by independent facilitators, and if required, by electing fore-people from within their number.

(6) Membership of the jury will be subject to the same regulations and exceptions as a regular jury, but membership can be declined without penalty.

(7) The citizens’ jury will be able to require Ministerial and official representatives of the UK Government and the Devolved Administrations to give testimony to them to inform their work, and to have the power to invite other witnesses to give evidence as required.

(8) The citizens’ jury shall publish reports setting out their conclusions on the negotiations and UK Government White Papers.

(9) The first report from the citizens’ jury shall be published within two months of this Act receiving Royal Assent, and subsequent reports shall be published at intervals of no more than two months.

(10) Costs incurred by the citizens’ jury shall be met by the Exchequer.”

New clause 21—Environmental protection and improvement: continuation of powers and functions—

“(1) The Secretary of State must establish and maintain a publicly accessible register of EU environmental powers and functions.

(2) The register produced pursuant to subsection (1) shall specify—

(a) the specific powers and functions relating to environmental protection or improvement exercised by EU institutions;

(b) the EU institution previously responsible for exercising those powers and functions; and

(c) the empowering provision in EU law relating to those powers and functions.

(3) The register produced pursuant to subsection (1) shall include the following functions—

(a) monitoring and measuring compliance with legal requirements;

(b) reviewing and reporting on compliance with legal requirements;

(c) enforcement of legal requirements;

(d) setting standards or targets;

(e) co-ordinating action; and

(f) publicising information including regarding compliance with environmental standards.

(4) Within one month of Royal Assent, the Secretary of State must—

(a) publish and lay before Parliament a statement identifying those powers and functions identified in the public register established under subsection (1) that will continue to be exercised by EU institutions or, alternatively, the existing or proposed new public authorities to which these powers and functions will be transferred; and

(b) make Regulations containing provisions to ensure that all relevant powers and functions relating to environmental protection or improvement exercisable by EU institutions anywhere in the United Kingdom before exit day continue on and after exit day.”

This new clause would ensure oversight of the transfer of functions from EU institutions to domestic institutions, by requiring the Government to establish a publicly accessible register of environmental governance functions and powers exercised by EU institutions, and to make regulations that ensure that all relevant environmental powers and functions are continued.

New clause 22—Dealing with deficiencies arising from withdrawal – further provisions—

“(1) This section applies where there is a deficiency in retained EU law on and after exit day in respect of which regulations have not been made under section 7.

(2) A deficiency includes, but is not limited to, retained EU law which—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant;

(b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it;

(c) makes provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State, which no longer exist or are no longer appropriate.

(d) makes provision for, or in connection with, other arrangements which—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU, and which no longer exist or are no longer appropriate

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before exit day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) A deficiency within the meaning of subsection (1) includes any failure or other deficiency arising from the United Kingdom’s withdrawal from the EU together with the operation of any provision, or the interaction between any provisions, made by or under this Act, but does not include any modification of EU law which is adopted or notified, comes into force or applies only on or after exit day.

(4) Where this section applies, the retained EU law in respect of which the deficiency arises is to be interpreted in accordance with subsections (5) to (9).

(5) The retained EU law does not allow, prevent, require or otherwise apply to acts or omissions outside the United Kingdom.

(6) An EU reference is not to be treated, by reason of the UK having ceased to be a member State, as preventing or restricting the application of retained EU law within the United Kingdom or to persons or things associated with the United Kingdom.

(7) Functions conferred on the EU or an EU entity are to be treated as functions of the Secretary of State.

(8) Any provision which requires or would, apart from subsection (7), require a UK body to—

(a) consult, notify, co-operate with, or perform any other act in relation to an EU body, or

(b) take account of an EU interest, is to be treated as empowering the UK body to do so in such manner and to such extent as it considers appropriate.

(9) In subsection (8)—

“a UK body” means the United Kingdom or a public authority in the United Kingdom;

“an EU body” means the EU, an EU entity (other than the European Court), a member State or a public authority in a member State;

“an EU interest” means an interest of an EU body or any other interest principally arising in or connected with the EU (including that of consistency between the United Kingdom and the EU);

“requires” includes reference to a pre-condition to the exercise of any power, right or function;

(10) This section ceases to have effect after the end of the period of two years beginning with exit day.”

This new clause provides a scheme for interpretation as a backstop where the transposition necessary to avoid deficiencies has not been effected by regulations made under Clause 7.

Amendment 2, in clause 7, page 5, line 6, leave out subsections (1) to (6) and insert—

“(1) A Minister of the Crown may by regulations make such provision as the Minister considers necessary to prevent, remedy or mitigate—

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

(b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.

(2) Deficiencies in retained EU law are where the Minister considers that retained EU law—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant,

(b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it,

(c) makes provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State, which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements which—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU, and which no longer exist or are no longer appropriate,

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before exit day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) But retained EU law is not deficient merely because it does not contain any modification of EU law which is adopted or notified, comes into force or only applies on or after exit day.

(4) Regulations under this section may make any provision that could be made by an Act of Parliament.

(5) Regulations under this section may provide for—

(a) functions of EU entities or public authorities in member States (including making an instrument of a legislative character or providing funding) to be exercisable instead by a public authority (whether or not newly established or established for the purpose) in the United Kingdom,

(b) the establishment of public authorities in the United Kingdom to carry out functions provided for by regulations under this section.

(6) Regulations to which subsection (5) apply must ensure that the functions of such EU entities or public authorities are exercised with equivalent scope, purpose and effect by public authorities in the United Kingdom.

(7) But regulations under this section may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) be made to implement the withdrawal agreement,

(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it,

(f) amend or repeal the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment),

(g) contain any provision the effect of which is that, in comparison with the position immediately before the exit date—

(i) any right conferred on a person by retained EU law is either removed or made less favourable,

(ii) any standard laid by retained EU law is lowered, or

(iii) any remedy, procedure or method of enforcement, in relation to any rights or standards conferred by retained EU law, is made less effective, or

(h) amend, repeal or revoke the Equality Act 2010 or any subordinate legislation made under that Act.”

This amendment restricts the Clause 7 powers so as to ensure they are only used as far is as necessary for the purposes of the Bill, that they do not abolish enforcement functions and that they do not reduce rights or protections.

Amendment 9, page 6, line 16, at end insert—

“(da) amend, repeal or revoke any retained EU law which implements a provision listed in Schedule [Exceptions for Directives etc.].”

This amendment, which is linked to NS1, would except EU Directives relating to workers’ rights from the power to make regulations to remedy deficiencies in retained EU law.

Amendment 56, page 6, line 23, at end insert—

“(6A) Within three months of this Act receiving Royal Assent, and every three months thereafter, a report must be laid before each House of Parliament listing—

(a) all deficiencies which Ministers of the Crown have identified would arise in retained EU law after exit day but which they do not intend to prevent, remedy or mitigate in advance using the powers under subsection (1);

(b) the reasons for each decision not to prevent, remedy or mitigate such deficiencies, and

(c) an assessment of the consequences of that decision.”

This amendment (linked with Amendment 55 provides for Parliamentary scrutiny of any decision not to use clause 7 powers to save retained EU law from being unable to operate effectively.

Amendment 59, in clause 9, page 7, line 16, at end insert—

“(5) No regulations may be made under this section until the Secretary of State has signed an agreement with the European Union guaranteeing that the United Kingdom will remain a permanent member of the EU single market and customs union.”

This amendment would mean the UK would confirm its continued membership of the single market and customs union before Ministers of the Crown carry out any actions under Clause 9 of the Bill.

Amendment 10, in clause 14, page 10, line 40, leave out from “means” to the end of line 41 and insert

“the time specified by an Act of Parliament approving the final terms of withdrawal of the United Kingdom from the EU;”.

This amendment would require exit day to be specified in a separate bill on the terms of withdrawal.

Amendment 39, page 11, line 37, at end insert

“and the arrangements for a status quo transitional period which encompasses—

(a) a “bridging period” to allow new agreements to be reached satisfactorily between the United Kingdom and the European Union lasting as long as necessary for a full trade agreement to be ratified, and

(b) an “adaptation period” to allow the phasing in of new requirements over time to provide for the implementation of changes to new agreements in an orderly and efficient manner.”

This amendment ensures that the meaning of “withdrawal agreement” is also taken to include a detailed transitional period with two distinct aspects, firstly allowing for a “bridging period” during which new agreements are concluded and secondly allowing for an “adaptation period” to give business and other organisations a period to adjust to those new arrangements.

Amendment 1, page 11, line 40, at end insert—

“(2A) Subsection (2B) applies if any “exit day” appointed in this Act is not in accordance with any transitional arrangements agreed under Article 50 of the Treaty of the European Union.

(2B) A Minister of the Crown may by regulations—

(a) amend the definition of “exit day” in the relevant sections to ensure that the day and time specified are in accordance with any transitional arrangements agreed under Article 50 of the Treaty of the European Union, and

(b) amend subsection (2) in consequence of any such amendment.

(2C) Regulations under subsection (2B) are subject to the affirmative procedure.”

This amendment ensures that the Bill can facilitate transitional arrangements within the single market and customs union.

New schedule 1—Exceptions for directives etc.—

This new schedule, which is linked to Amendment 9, lists the EU Directives relating to workers’ rights which would be excepted from the power to make regulations to remedy deficiencies in retained EU law.

Government amendment 33.

Amendment 58, in schedule 7, page 48, line 7, at end insert—

“12A Any power to make regulations under this Act may not be exercised by a Minister of the Crown until 14 days after the Minister has circulated a draft of the regulations to the citizens’ jury appointed under section (Citizens’ jury on Brexit negotiations).”

The intention of this Amendment is to provide for a citizens’ jury to be consulted before regulations are made under this Act.

Government amendments 35 and 36.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I rise to speak to new clause 1 and amendments 2 and 1, which stand in my name and those of my right hon. and hon. Friends. As you are aware, Mr Speaker, this remaining group contains a significant number of important issues, and while I want to spend time talking to each of our three amendments, I am conscious that time is limited, so I will endeavour to keep my remarks as brief as possible.

As my hon. Friend Paul Blomfield reminded the House yesterday, as far back as last March the Opposition set out six ways in which the Bill required improvement. The first was that it be drafted in such a way as to enable transitional arrangements after 29 March 2019 on the same basic terms as now—including being in a customs union with the EU and within the single market. The second was that the sweeping delegated powers in the Bill be circumscribed. The third was that it needed to contain clear and robust protection and enforcement mechanisms for all EU-derived rights, entitlements, protections and standards. Sadly, despite some small steps in the right direction, the Government have largely failed to respond in any meaningful way to the concerns we raised in relation to these three areas. The purpose of new clause 1 and amendments 2 and 1 is to press the Government once again to do something about each of them.

I turn first to new clause 1, the purpose of which is to ensure that retained EU law enjoys a form of enhanced protection from subordinate legislation contained in other Acts of Parliament. This is a highly technical matter but a crucial one for the rights and protections our constituents enjoy. Mr Speaker, you were not in the Chamber at the time, but hon. Members who were present will recall that the House debated clauses 2, 3 and 4 in great detail on day two of Committee, and I certainly do not intend to cover the same ground again today. As we heard again yesterday, however, there are very real problems that flow from the ambiguous and uncertain status of retained EU law—a problem to which we believe new clause 13, tabled by Mr Grieve, provides a pragmatic solution, or at the very least a sensible starting point for a conversation about how the status of this new category of law could be more clearly defined.

Leaving to one side the issues relating to the status of retained EU law—issues that I have no doubt the other place will return to at some length—there is another, related concern, and that is the vulnerability of this new category of law to subordinate legislation and what that means in practical terms for the rights, entitlements, protections and standards our constituents currently enjoy. I want to be very clear as to the argument I am making at this point, because when I first did so on day two of Committee, the debate was prone to veer off on to other related but distinct issues.

The concern I am highlighting does not relate to the issue of how Parliament is to scrutinise and, where necessary, approve the hundreds of statutory instruments that will flow from clause 7, as well as clauses 8, 9 and 17. We welcomed the Government’s acceptance of the amendments tabled by Mr Walker and other members of the Procedure Committee, although we still believe that they do not go far enough, particularly in relation to the new sifting committee’s inability to request that Ministers revoke and remake specific statutory instruments.

Nor does the argument that I am advancing concern how the powers contained in this Bill might be used to amend, modify or repeal retained EU law. The specific issue that I am highlighting, and what new clause 1 seeks to address, is our serious concern that the Bill as drafted leaves retained EU law vulnerable to amendment, modification or repeal by subordinate legislation contained in numerous other Acts of Parliament.

Photo of Melanie Onn Melanie Onn Shadow Minister (Housing, Communities and Local Government) (Housing)

Is it not the case that workers’ rights have no privileged status under the Bill? Once the Bill becomes an Act, those rights can be picked off by secondary legislation. If the Government wish to prevent workers from receiving proper holiday pay or to cap awards for discrimination, they will be easily able to do so.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

That is absolutely true. The Government would be able to do that by using subordinate legislation in other Acts of Parliament. That applies not just to workers’ rights, but to other areas of law such as the environment and consumer rights. That category of law will lose its underpinnings following our departure from the EU.

Wrenched away from the enhanced protection enjoyed as a result of our EU membership, retained EU law—and we should bear in mind that that category of law might be with us for decades—will in many cases enjoy the lowest possible legislative status, and consequently the wide range of rights and protections that flow from it will be more vulnerable than they were before. The Opposition have repeatedly emphasised that Brexit must not lead to any watering down or weakening of EU-derived rights, particularly rights and standards in areas such as employment, equality, health and safety, consumers and the environment. That is why we tabled new clause 58 in Committee. Setting out the reasons why the Government were opposed to new clause 58, the Solicitor General argued that it would

“fetter powers across the statute book that Parliament has already delegated.”

Furthermore:

“Relying only on powers set out in this Bill to amend retained EU law would be insufficient”.—[Official Report, 15 November 2017;
Vol. 631, c. 418.]

In keeping with the constructive approach that we have taken towards the Bill throughout this process, we have engaged seriously with the Solicitor General’s argument, and new clause 1 is the result. Like new clause 58, it seeks to give retained EU law a level of enhanced protection, thus avoiding a situation in which laws falling within the new category might enjoy the lowest possible legislative status. It also accepts the defence put forward by the Solicitor General, and provides a mechanism whereby a Minister may use regulations provided for in other Acts of Parliament to amend, repeal or modify retained EU law, but only in cases in which it is necessary to maintain or enhance rights and protections, and only after consultation. In short, it concedes that there are many instances in which the use of subordinate legislation contained in other Acts of Parliament might be necessary, but seeks to reconcile its use with a presumption of enhanced protection.

Since the referendum, Ministers have repeatedly stated that the Government do not wish to see any rights and protections diminished as a result of our departure from the EU. That is also what the public expect, but it requires a level of protection that the Bill as it stands does not provide. We hope that the Government will engage seriously with the new clause and accept it, but we intend to press it to a vote if they do not.

Photo of Chris Stephens Chris Stephens Shadow SNP Spokesperson (Trade Unions and Workers' Rights)

Is it not important for the public to be reassured about workers’ rights, given reports in the media of Cabinet discussions about scrapping the working time directive?

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I think most of our constituents assume that the guarantees that they currently enjoy will continue. They will not know that many of these rights flow from and are underpinned by EU law, but they would expect them to be transposed in a way that would provide the same level of protection rather than the lowest possible legislative status. This is an issue to which we shall have to return, and one that the other place will no doubt tackle.

Amendment 2 seeks to further circumscribe the correcting powers contained in clause 7. Throughout this process, we have been at pains to argue that, to the extent that relatively wide delegated powers in the Bill are necessary, they should not be granted casually, and that when they are granted they should be limited whenever that is possible and practical. It is clear from their tabling of amendments 14 and 15, and consequential amendments, that the Government accept that there are shortcomings in the drafting of clause 7. We welcome the fact that the deficiencies identified in clause 7(2) will now form an exhaustive rather than an illustrative list—with the caveat, I should add, that the further deficiencies can be added at a later date. In effect, the list as drafted will be exhaustive unless Ministers subsequently decide that it is not. That is not perfect, but it does represent some progress.

Nevertheless, even with the incorporation of Government amendments 14 and 15, the correcting powers provided for which clause 7 provides are still too potent and too widely drawn. Suggestions on day six of the Committee stage that the clause ought to stipulate that the correcting power should be used only when necessary have been ignored, as have concerns that the Bill as drafted does not guarantee that the powers and functions of entities such as the European Commission and other EU agencies will continue to operate with equivalent scope, purpose and effect after exit day. Concerns that the Bill as drafted could be used for a purpose other than that which was intended— specifically, that it has the potential to diminish rights and protections—have likewise been ignored.

On day six, the Government had the chance to justify the drafting of the clause in detail and to address each of those concerns, but they did not do so adequately. They were also given an enormous menu of options, in amendments tabled by Back Benchers in all parties, whereby the powers in the clause—and, indeed, similar powers elsewhere in the Bill—might be constrained. Amendments 14 and 15 represent the totality of their response. As I have said, they are a step in the right direction. but on their own they are not enough. That is why we tabled amendment 2, which addresses comprehensively the range of flaws contained in clause 7 so that the correcting power is reasonably and proportionately circumscribed. If the Government do not indicate that they have taken those concerns on board and are prepared to act on them, we will press the amendment to a vote.

Amendment 1 seeks to ensure that the Bill can facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. The Opposition have argued for some time that we need a time-limited transitional period between our exit from the EU and the future relationship that we build with our European partners. We believe that, to provide maximum certainty and stability, that transitional period should be based on the same basic terms as now. That includes our being in a customs union with the EU and in the single market, both of which will entail the continued jurisdiction of the European Court of Justice for the period that is agreed. Our view is shared widely by businesses and trade unions, but for a long time it was considered to be anathema to the Prime Minister and senior members of her Cabinet.

Photo of Melanie Onn Melanie Onn Shadow Minister (Housing, Communities and Local Government) (Housing)

I thank my hon. Friend for being so generous with his time. There are many cases, such as Marshalls Clay Products Ltd v. Caulfield and Gibson v. East Riding of Yorkshire Council, in which domestic courts have reached incorrect decisions on workers’ rights. If the European Court of Justice will no longer be the adjudicator after the transitional period, what will?

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

After the transitional period, the ECJ would not be the adjudicator. That would be dealt with as a matter of retained law. My hon. Friend has reinforced a point that I made earlier. We need a level of enhanced protection and the courts need clarity on how to interpret this new category of law, because if they do not have that clarity and certainty, they will be more vulnerable.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I hope shortly to be able to make a brief speech on that very subject, dealing with the question of whether or not there should be a power for the courts to disapply Acts of Parliament in relation to the matters to which the hon. Gentleman has referred.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I am not sure that that warranted an intervention, but I await the hon. Gentleman’s contribution with bated breath.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Further to the point made by my hon. Friend Melanie Onn, does my hon. Friend agree that either the institutions and agencies that currently enforce EU rights, privileges and protections should be maintained as EU agencies, or a transitional arrangement should involve agencies and institutions that will protect people’s rights in respect of, for instance, work, the environment and consumer issues?

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I certainly believe that, when it is appropriate and when the country will derive benefit, we should continue to participate in EU agencies. The important point, however, is that when the functions and powers of EU agencies are transferred to either an existing or a new body, the purpose, scope and effect of the rights and protections that flow from those agencies should continue. That is one of the issues that clause 7 fails to address.

Returning to my earlier train of thought, all of this was why the Prime Minister’s Florence speech of last year was so welcome. It made it clear that Government policy was to seek, semantics about implementation versus transition aside, a time-limited period in which the UK and the EU would continue to have access to one another’s markets on current terms, and with Britain continuing to take part in existing security measures.

Crucially, the Prime Minister made it clear that this bridging arrangement would take place on the basis of

“the existing structure of EU rules and regulations.”

That quite clearly implied the acceptance of the jurisdiction of the ECJ, as confirmed by the Prime Minister in an answer to Mr Rees-Mogg in the weeks following the speech, when she stated:

“that may mean that we start off with the ECJ still governing the rules we are part of”. —[Official Report, 9 October 2017;
Vol. 629, c. 53.]

It is also set out in black and white in the phase 1 agreement.

Photo of Chuka Umunna Chuka Umunna Labour, Streatham 1:30 pm, 17th January 2018

With regard to the issue of transition or implementation, as the Government call it, does my hon. Friend agree that while it is of course necessary in particular to give time for our businesses to prepare, transition or implementation is no safe harbour if this Government are determined to pursue the extreme break from our relationship with the EU which have set out with their red lines? That is no safe harbour to jumping off a cliff; it just delays it, in fact.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I absolutely agree; and the unpicking of, or wheeling back from, some of the progress we felt had been made in the Florence speech is one of our concerns.

The Bill before us was drafted before the Florence speech, but rather than amend the Bill to reflect the evolution of Government policy outlined by the Prime Minister in that speech, the Government chose instead to fashion a legislative straitjacket for themselves in the form of enshrining “exit day” for all purposes in the Bill as 11 pm on 29 March 2019. Let us be clear: bringing forward amendments to stipulate that exit day for all purposes of the Bill had nothing to do with leaving the EU. The article 50 notification made our departure from the EU on 29 March 2019 a legal certainty, so, for the purposes of the Bill, exit day could be left in the hands of Parliament.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

The hon. Gentleman just used the phrase “legal certainty” in referring to our departure from the EU on 29 March 2019. Does that mean that he has seen legal advice that article 50 cannot be revoked? Is the Labour Front-Bench position that it is impossible, as opposed to politically inexpedient, to consider revoking article 50?

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

The hon. Gentleman tempts me down an avenue that has nothing to do with the point I am making, which is that it remains unclear why the Government tabled three exit day amendments to their own Bill which have sown further confusion. We do not know why they did that—whether it was driven by Tory party management considerations or some other reason. The effect of those Government amendments would have been to end the jurisdiction of the ECJ on 29 March 2019, thereby preventing agreement on a transitional period on current terms.

The Government clearly soon realised their mistake and to save face enlisted Sir Oliver Letwin, who is not in his place, to table amendments to loosen the legislative straitjacket they themselves had created. But his amendments, which the Government have accepted, only provide a limited form of flexibility. Ministers may now amend the definition of exit day in clause 14 for the purposes of the Bill if the date when the treaties cease to apply to the UK is different from 29 March 2019. However, there is good reason to argue that that power might not be sufficient to facilitate transitional arrangements after 29 March 2019 on the same basic terms as now. If it is not—this might end up being the most bizarre aspect of the Bill’s curious parliamentary process—the Government will find themselves in the ludicrous position of having to amend this Bill when they bring forward the withdrawal agreement and implementation Bill later this year.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I think that is a virtual certainty in any event. On the basis of the Bill that the Government have promised the House for the end of this year, it seems to me that it will be a substitute for the arrangements under the existing European Communities Act, so I think that must be what is going to happen.

Photo of Matthew Pennycook Matthew Pennycook Shadow Minister (Exiting the European Union)

I agree, but what I would say—and why I would urge Members to support this amendment—is that it need not require the amendment of this Bill to allow the facilitation of transitional arrangements on the same terms in addition to the provisions that the right hon. and learned Gentleman is right to say will be needed in that further Act of Parliament.

We still believe that it should be Parliament, not Ministers, that decides exit day for the various purposes in the Bill. Our amendment 1 helpfully bolsters the position set out by the Prime Minister in the Florence speech by ensuring that this Bill can facilitate transitional arrangements on the same terms as now.

Given that this is, of course, Government policy, it is a wonder that the Government did not bring forward such an amendment themselves. They did not do so because they cannot agree on what the transition means. There can be no clearer evidence for that than the recent appointment of Suella Fernandes to the Department for Exiting the European Union team, given her past form in seeking to actively undermine the policy position set out in the Florence speech by encouraging her colleagues to sign a European Research Group letter to the Prime Minister objecting to crucial aspects of it. It is ironic that those Tory MPs who voted for amendment 7 back in December are viewed by many as having betrayed the Government, while those who actively undermine stated Government policy appear to get promoted in quick succession.

Amendment 1 is simply an attempt to restore some common sense to the question of exit day for the purposes of this Bill. It would ensure that this Bill can facilitate any transitional arrangements agreed as part of the article 50 negotiations and that we avoid the ludicrous situation of potentially having to come back to amend this Bill in order to do so. It is in line with stated Government policy, and we therefore look forward to the Government not only accepting it, but welcoming it.

The Opposition have made it clear from the outset that a Bill of this kind is necessary to disentangle ourselves from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave. But as we argued on Second Reading in September last year, this Bill is a fundamentally flawed piece of legislation. Sadly, despite the small number of welcome concessions, and the implications for the legislation of the defeat the Government suffered at the hands of amendment 7 and Mr Grieve on 12 December, it remains a fundamentally flawed Bill. Those flaws still need to be addressed either by this House today or in the other place, and on that basis I urge all hon. Members to support new clause 1 and amendments 2 and 1.

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

I am glad to see my right hon. Friend Sir Desmond Swayne in his place behind me, where I always welcome him. When I arrived, I inquired whether he had had a cup of coffee before today’s long proceedings, and I undertake to try to have no soporific effects on those Members who have survived to the eighth day of this Committee and Report stage.

I do not intend to follow entirely Matthew Pennycook, although I listened to many of the points he made with considerable sympathy; I am quite sure that clause 7 will require more work when it gets to another place, and I also have considerable sympathy with what he said about the confusion now surrounding exit day and the ability to proceed to what I am sure is the obvious transition arrangement we are going to have to have for quite a long time, which will be on precisely the same terms that we have at the moment, so far as access to the market is concerned.

I will turn my attention, however, to the Bill’s impact on the economy, following from new clause 17, which is in this selection and strikes me as excellent, and several more of the same kind. In our eight days, the House has not had anything like adequate opportunities to consider this absolutely vital policy implication of what we are embarked upon as we seek to leave the EU. I do not share the view that the Bill needs to be treated in this House or the other place as a mere technical or necessary Bill of legal transition; we have the opportunity to put into the Bill some of the essential aspects of our future economic relationship and to allow the House to express a view and put into statute things that we wish, and instruct in line with our constitution, the Government of the day to follow.

There is undoubtedly going to be some economic cost to this country, regardless of the means by which we eventually leave the European Union. If we have a complete break with no deal, the implications could be very serious indeed. I am one of those who think it rather foolish to try to put precise figures on this. The Scottish National party earlier tried to make precise estimates of what would happen because a think-tank had put out a range of consequences, depending on which options were followed. It was rather reminiscent of the arguments put forward by the then Chancellor of the Exchequer when he tried to help the remain side during the referendum campaign. They were really rather fanciful figures.

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

As I have mentioned the SNP, I will give way to the hon. Gentleman.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

Clearly, any forecast or projection is going to be approximate, and I do not think that anyone is claiming that the Scottish Government’s figures are precise. But would the right hon. and learned Gentleman prefer to defend a position that was backed up by approximations and forecasts that may or may not be accurate, or would he prefer to be in the Government’s position of defending a position backed up by no impact analysis whatever?

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

I shall turn to that in a moment, but I agree with the hon. Gentleman entirely. I was not making a criticism of the think-tank, which has done its best, but we all know from experience that all economic forecasting should be taken with a slight grain of salt. It is utterly beyond the capacity of either the Treasury or the most expert outside groups to predict with absolute confidence what the precise consequences will be.

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

I would like to move on. I was merely making a passing remark about the unwisdom of trying to put a figure on this, but I will give way.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I am grateful to the right hon. and learned Gentleman. I wonder, given that he is talking about the impact on the economy, whether he has heard the remarks by Christophe Bondy, the legal counsel to the Canadian Government during the Comprehensive Economic and Trade Agreement negotiations. He has described Brexit as being like trying to

“blow up a bridge without bankrupting yourself” at the same time. He has also said that the Canadian deal and our coming out of the single market and customs union are very different.

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

I agree with that second point strongly, and I will consider the implications of the quote.

The point I am trying to make is that, whatever the basis on which we come out, there are bound to be adverse effects on the British economy if we create new barriers between ourselves and the biggest free market in the world. No other Government would remotely contemplate moving out of such a completely open and free market and deliberately raising barriers by way of tariffs, customs processes or regulatory divergences between themselves and such a hugely valuable market. It is particularly valuable to us not only because it is a huge market but because it is on our doorstep. We have played a major part in creating this totally open trade.

If we proceed to a deal in which we withdraw, we will inevitably find ourselves, to some degree or other, taking an economic blow and probably making future generations less prosperous than they would otherwise have been. It is important that we all realise that, which is why it is a great pity that the House is not being given the information necessary to make a really informed judgment, as Peter Grant has just said, or being allowed any opportunity to guide the Government and hold them to account for the course on which they are set on these economic and trading implications.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

In his assessment, has my right hon. and learned Friend taken into account the fact that services within the European Union have never been completed under the single market? Furthermore, our deficit in the past year with the other 27 member states has gone up by another £10 billion, while our surplus in our trading with the rest of the world has grown exponentially by another £6 billion or £7 billion, so I really rather doubt his conclusions.

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

I entirely agree with my hon. Friend’s first point. For as long as I can remember, it has been the policy of Conservative Governments, some of which I have served in—indeed, it is a policy in which I have been involved from time to time—to press for the single market to be extended to cover all services. Until the referendum almost 18 months ago, we were still actively engaged in canvassing for that and trying to push it forward inside the EU. We are also making considerable progress towards a digital single market across Europe, which will be very important. The other member states are likely to go on and complete that quite soon.

On my hon. Friend’s second point, I think he is referring to the economic doctrine that used to be known as mercantilism, of which President Donald Trump is extremely fond. I regret to say that it is a great fallacy that a free market trading arrangement is valuable only to the party to it that has a surplus in trade for the time being and that it is a handicap to the party that, for the time being, happens to have a deficit. However, I do not think that this is the occasion on which we should debate this matter at length. He and I are both guilty of debating these things at length.

I do not accept my hon. Friend’s argument. For example, if we are going to solve our problems when we leave Europe by having a free trade deal with the United States, which I find wholly unlikely, one of the things that Donald Trump will eventually notice is that we have a large bilateral trade surplus with his country. That is why the only interest we will get from America is in how it can open up our market, mainly to its food products, with which our farmers will find it very difficult to compete. We will also discover that Donald Trump has decided that all trade agreements involve regulatory convergence. We will either have the same regulations or something that we as part of the EU were trying to negotiate with the Americans—namely, mutual recognition of regulations.

When our Secretary of State for International Trade came back from his preliminary excursion to offer the Americans this great opportunity to throw open their markets to us without conditions as never before, he found that one of the first things he had to do was try to persuade the British public to see the advantages of chlorinated chicken. He could have gone on to talk about hormone-treated beef and genetically modified crops. As it happens, I have no strong objection to those things—I have eaten in America and I have survived—but I am not sure that that would be an easy sell to the British public or to the House of Commons. Indeed, I think it would be a very difficult sell to the House of Commons.

The fact remains that the benefit of free trade agreements is that—so long as we are careful not to go into areas where we can see we cannot compete—they can stimulate increased economic activity on both sides of the deal. As for the fact that our trade over recent years with non-EU countries has grown more than our trade with EU countries has done, that is the way in which the globalised economy has worked since the 1990s. We actually do very badly in an awful lot of the strong emerging countries. The Germans completely outperform us in China, for example, but we have got going there. The fact is therefore that every other country will find that their trade with countries that were previously poor and are now rapidly emerging will grow faster than their trade with their traditional markets. That does not alter the fact that our European market is absolutely dominant.

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

My hon. Friend and I have been debating the subject for so long, and I think it would be unwise for the two of us to get bogged down in mercantilism. I will give way to the right hon. Gentleman.

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

I want to ask the right hon. and learned Gentleman about the assessment of impact. I think that it is important that we call it an assessment of impact rather than an impact assessment, because the Government can hide behind the formal impact assessment process. On the assessment of impact, would he like to speculate about why the Government are so adamant that Members of Parliament should not be allowed to receive this information?

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

The points I hoped to make in my speech are being put to me by others, which may have the welcome effect of shortening my contribution. I entirely agree with the right hon. Gentleman.

Photo of John Redwood John Redwood Conservative, Wokingham

My right hon. and learned Friend has not given us many numbers so far, and the one he has given us is wrong. We have actually had eight days in Committee and two days on Report, and we had an extensive debate on Second Reading in which many of these larger issues were strongly reviewed. We had very detailed short-term forecasts from the Treasury of what would happen in the year or so immediately after the vote if we voted to leave. We now know they were comprehensively wrong in forecasting a recession, a big rise in unemployment and a big fall in house prices. Why were they so wrong, and what has he learned from that?

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

My defence is that I did not use any of those arguments in the campaigning I took part in during the referendum. The referendum campaign was somewhat taken over by the then Chancellor and the then Prime Minister, both friends of mine and people with whom I politically agree on Europe, and I would not have made the same choice of arguments. I thought at the time that they were spinning the short-term forecasts far too far and, with hindsight following the rather narrow result, they rather discredited the remain campaign. Surprisingly, I am rather in agreement with my right hon. Friend.

My right hon. Friend may not have been here in time to hear me begin by saying that all attempts to produce a precise forecast of any change in economic arrangements are fraught with peril. I would have preferred the referendum to have been fought on arguments about the benefits, in the opinion of those on my side, that membership of the EU has brought to this country in enabling us to develop a powerful political role in the world as one of the leading members of the EU, in helping the bloc to hold its own against America, China, India and the emerging powers and in the considerable economic success that we achieved for most of the 47 years of our membership. There is no doubt that the common market and then particularly the single market have made a considerable contribution to our prosperity.

That enables me to return to the point of my speech, which is the economic consequences and how the House might be enabled to hold the Government to account for the likely economic consequences—properly and cautiously anticipated—when they have a policy on the eventual outcome they are trying to negotiate and then, because it will inevitably change in the real world, when a deal is ultimately negotiated.

I would prefer us to continue in the single market and the customs union. The point has been made, including by me, so I will repeat it in only one sentence, but at no point in the referendum campaign did the leavers say that one of the advantages of leaving is that we will leave the single market and the customs union. Most of them never mentioned it, and the ones who were reported in the national media did not mention it. It was all about Turks coming here to take our jobs and about extra money for the health service. Both sides used equally foolish arguments, or at least the national media only chose to report the foolish arguments. The people I debated with in town halls did not use such nonsense.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

Does the right hon. and learned Gentleman accept that we are less likely to catch up with the Germans on penetrating the Chinese market if we are out of the EU? We will have our back to the wall, facing tariffs, if we are not in the EU, and the Chinese will be able to bargain harder against a small player with few resources and little trade.

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

That is possible. The idea that the Germans find membership of the European Union a disadvantage in their economic performance in the modern world is, of course, a rather farcical fallacy. If we weaken our attractiveness to inward investment and if we weaken ourselves as a base for trade with the rest of Europe, we will attract less investment and less trade with the wider world, too. I entirely agree that that is a risk.

The Lancaster House speech transformed things by suddenly making the Government’s policy particularly dependent, apparently, on leaving the single market, leaving the common market and, incidentally, repudiating the jurisdiction of the European Court of Justice, which I will not go into because I have never been able to work out why the work of those judges, including the excellent British judges we have had on that Court, is particularly criticised. That is another matter.

I have never heard any Government Front Bencher attack the single market in itself or the customs union. When we hear speeches from Ministers about a bespoke new trade agreement, it sounds very much like an unbroken continuation of all the access we have to the rest of Europe under the single market and the customs union. The only objection to the single market, and the Prime Minister once expressed this to me at Prime Minister’s questions, is the four freedoms that go with it, including the free movement of labour. I still imagine that other countries would quite like to address the free movement of labour.

I think free movement of labour does us good—I would not want to get rid of it—but we do not need to run it in quite the lax way we have been running it for the last 20 years. The only other objection to a customs union, and I do not regard it as an adequate reason—staying in the customs union would solve the Northern Ireland and Irish Republic problem practically overnight—is that it stops the Secretary of State for International Trade going out and negotiating marvellous new trading arrangements with all sorts of places. Negotiating such arrangements would, of course, produce a hole in the common customs barrier that the customs union creates.

If anything, I am afraid the world is more protectionist than it used to be. The last great attempt by those of us who believe in a rules-based order in the global system was the Doha round, in which we tried to get the WTO rules to move on from their present rudimentary condition after what was then the triumph of the Uruguay round. The Doha round went on for years and years, and eventually it went into the sand. It was never completed to the satisfaction of anyone who agrees that there are benefits to all societies from having properly regulated and protected free trade.

I have already addressed the idea that, when we are no longer negotiating as a member of the EU, Trump’s America will be more likely than Obama’s America to throw open its doors to unfettered access to whichever goods and services we wish to send. The Brazilians are ambiguous. The EU has everything to gain from dealing with Brazil, but the difficulties are that Brazil insists on exporting food products on a grand scale and the internal economy of Brazil does not naturally lend itself to free trade. Mercosur, as a group, is almost incapable of agreeing on any common position.

I will not go on but, much though some in the present Administration would wish otherwise, I do not think India is yet ready for free trade agreements with countries such as Britain. I wish I could feel more confident it were otherwise, but I think the Lok Sabha will daunt anyone who tries to take on the various pressures in India in order to have a free trade agreement. I have been to India myself to try to get it to open up to legal services, with considerable support from a lot of Indian businesses that would like some of our countries to provide international quality services in Delhi so that they do not have to come to London to get their advice, but protectionism in every aspect of Indian society is not to be understated. We are not going to get far. I will not go on about China, as I said I would not go country by country.

This is all an absolute illusion. I would prefer to stay where we are, but apparently we are moving out. We are demanding a bespoke arrangement but, as yet, we have not been clear what that bespoke arrangement is, which is a considerable difficulty. This has been debated already and we have got some concessions, although they are not yet good enough, but when we finally reach a stage where the British Government intend to ratify a proposed deal, it is perfectly obvious to me from all our past constitutional conventions that they should come to Parliament to get its approval for that ratification. There was a key vote in 1972 when we joined the European Union. There was approval in principle of the deal that was proposed, which attracted Jenkinsite support to give the then Government a majority over their imperialist rebels, who were voting against it. But we started legislating in 1972 only when we had the approval of the House of Commons, by quite a comfortable majority, to ratify on the terms that were presented and explained. The same should happen here.

Given my strictures about the referendum debate, and some of the others we have had, I think that the more we can do to make sure we have an informed debate on whatever trade, investment and other deal is proposed with the EU, the more likely we are to uphold the duty we all have in this House to apply our judgment of the national interest, to think a little of the future as well as the short-term politics and to decide whether or not this vital consent of Parliament is to be given.

Photo of Justine Greening Justine Greening Conservative, Putney 2:00 pm, 17th January 2018

My right hon. and learned Friend has made a very important point. I represent a very young constituency in London. The bottom line, looking ahead, is that, if Brexit does not work for young people in our country, in the end it will not be sustainable and when they take their place here, they will seek to improve or undo what we have done and make it work for them. So we absolutely have a duty in this House to look ahead and ensure that whatever we get is sustainable and works for them.

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

I entirely agree with my right hon. Friend on that. One extraordinary thing about the division of opinion is that I have never known it to be so much on generational lines. There are some zealot young leavers and there are one or two, like me, old fogey, very sound remainers, but otherwise the public have not usually been divided so fiercely on generational grounds. In my limited experience—I do spend a lot of time in London’s House of Commons—I would have thought places such as Richmond and Putney would underline that very heavily. My experience of young, ambitious, professional business and other people in London has been that for the first time in my life I have had complete strangers from that category walk up to me in the streets just to thank me for taking part in this campaign. [Interruption.] I see that other Members have exactly the same experience. I am sure the silent people who walk by deplore my views, but this just brings home to me how divided the nation is and, curiously, it is on generational grounds. Therefore, unless something happens, the pro-remain sentiment is likely to increase as a proportion of the country as we go on. But if we leave and are then forced by events to start going back again, I cannot think of a more chaotic situation. That is why we need the information to make a proper assessment when eventually the Government, as they will have to and are entitled to, come back to this House to present the proposed deal—not a deal they have already done and signed up to—for approval.

The Government have vast amounts of material on this subject and vast access to resources, and they have no reason for excluding the House of Commons totally. I am talking not about their negotiating position, because of course they will exclude us from that, but about the basis of the objective, independent advice they have received. That is why I thought it was wise for the House of Commons to pass the motion, which the Government allowed it to do, asking them to produce papers, after Ministers had rightly said that there were all these impact assessments and so on. I bow to the Select Committee, to which we rightly transferred responsibility for looking at that and considering the matter, but I agree with the intervention I took from the hon. Member for Glenrothes.

The Government escaped from that position by suddenly taking the most narrow interpretation of the words “impact assessment”. Apparently, civil servants, who are always capable of coming up with helpful advice, said, “Strictly speaking, Minister, in Whitehall, ‘impact assessment’ means this.” That is not quite how we set it out, so that was refused. Then this was all edited, probably with large parts of it rewritten. What we do not have is what we undoubtedly require: an impact assessment, by whatever description, using the advice that comes to the Government from the Treasury, the central Bank, the Office for Budget Responsibility and any consultants they have taken in, of the basis on which this deal is being proposed and what the best advice they can obtain about its impact is. I am astonished that we have got so far into the proceedings and the debate on our future relationships with Europe and we still do not seem to be any nearer to persuading the Government ever to divulge any of this. I do not think we should wait for the 20-year or 30-year rule before we are allowed to see on what basis the Government were proceeding. As I began by saying, I agree with new clause 17 that we should specify that proper, full information is shared by the Government with this House before they come for our approval.

Photo of Anna Soubry Anna Soubry Conservative, Broxtowe

As ever, my right hon. and learned Friend is making an exceptionally important speech and doing so eloquently. As he will know, a group from the all-party group on EU relations has just been over to Brussels, where we spoke to a number of people. Many of those conversations will remain between us, as we agreed. Does he agree that it could well be argued that the Government made a mistake in rushing into saying no to the customs union and to the single market without fully understanding the implications, not just for our economy, but in terms of how this has meant that a range of options has now been taken off the table by the UK Government, when the EU has made it very clear that all options remain on the table as far as it is concerned?

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

My right hon. Friend and I have many friends in common. I am delighted that she went over to see Michel Barnier and others, whom I saw in slightly different company shortly before. I agree entirely with what she says, and I would add that the people she was meeting, people like Michel Barnier, are not Anglophobes. They are not just seeking to strike points off the UK. Every person of any common sense on either side of the channel knows that the minimum of disruption to trade between our countries is, for the reasons I was arguing with my hon. Friend Sir William Cash a little time ago, of mutual benefit to those countries. They are looking to negotiate a serious, grown-up agreement that preserves, so far as is possible, the benefits of our present arrangement.

It will be extremely difficult. There is no getting away from the fact that the 27 countries will all have to be in agreement with whatever the eventual deal is and will all submit to their Parliaments a vote to approve that deal, and it is going to be very difficult to get them to agree. They will not surrender the basic tenets of the EU in order to leave us all the benefits of the single market without any of the obligations. Not only will they not agree that the British taxpayer should stop paying a penny towards the costs of market access so that the taxpayers of Germany, the Netherlands and other rich countries pay more to make up for our refusal to pay our share, but they will not let us get out of all the political implications of membership of the EU simply to have solely the trading benefits.

We saw this recently with the members of the European economic area and their perfectly comfortable arrangement. The Norwegians had to go into the EEA because they had negotiated a perfectly sensible arrangement to become full members of the EU—I had many happy discussions with my then opposite number, the Norwegian Finance Minister, who was looking forward to joining the EU—but then held a referendum. They got into the same mess that we have got into, so they put quite a good alternative together, which I still find quite attractive.

The fact is that what we get will be unsatisfactory compared with complete membership of the single market and customs union. Like my right hon. Friend Anna Soubry, I do not think that anybody realised at the time quite what was involved in respect of what seemed a speech likely to be valuable politically in getting good write-ups in the right-wing press. We are now trying to get out of that and to slip back a little to get a more sensible arrangement. The House needs to know what expert advice the Government have on the implications of any deal, and new clause 17 provides a mechanism by which we can legally oblige the Government to produce it.

Several hon. Members:

rose—

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

I have, and everybody still seems to be awake!

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

I congratulate Mr Clarke on warming up the debate so well. In a way, Mr Speaker, I feel sorry for you in the Chair, because it is perfectly ridiculous that the programme order is such that we have to conclude our series of debates at 4.30 pm when so many issues have not been properly aired on Report. I said that during yesterday’s debate on the programme motion, and I hope that Members in the other place will bear that in mind when they consider the Bill.

I tabled amendments on six issues that I did not think had been adequately covered in Committee. Being a dutiful Member, I felt it my responsibility to table amendments to cover those issues, but I must rush through them, because otherwise I will not exactly be flavour of the month with many of my colleagues.

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

Don’t say “Hear, hear” in that way.

New clause 5 addresses a massive topic. It simply says, almost in the words of the Secretary of State for Exiting the European Union, that after we have left the EU, we should have the exact same benefits for the service industries in our country—including financial, legal and professional services—as we have now. The service sector accounts for some 80% of the British economy. During our consideration of the Bill, we have not yet really debated the implications for the service sector. It is often easier to talk about the trade in goods, because goods are tangible—they are physical, and we can imagine them crossing borders, going through ports and so forth—but in many ways we excel in our service sector, so new clause 5 would simply put into the Bill the commitment that Ministers have previously given that they would seek the exact same benefits.

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

I do not have much time to go into new clause 5 and I shall try not to take too many interventions, but how can I resist my right hon. Friend?

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union

Does my hon. Friend agree that on the question of services, never mind goods, this is probably going to be the first negotiation in human history in which a Government have gone into the process knowing that they will come out with a worse deal than the one currently enjoyed? The reason for that is the red lines that the Government have set for themselves. Does not that demonstrate what a profound error this has been, especially when we now know that the decisions on those red lines were taken without any assessment at all of their economic impact?

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

Absolutely; I could not have put it better myself. We currently have, in the shape of the single market, one of the finest free trade agreements available to any country anywhere in the world. It is frictionless and tariff-free and, of course, it offers great opportunities for those in the UK service sector to sell their services to 500 million customers. There was nothing about departing from the single market on the referendum ballot paper, so this is a ridiculous red line that the Government should not have put in place. I take this opportunity to gently ask my right hon. and hon. Friends on the Opposition Front Bench please not to acquiesce to the red lines. The fact that the Government have set them does not necessarily mean that they are correct. I want the Labour party to fight for permanent access to and membership of the single market, and I will not stop making that point.

New clause 2 might look a bit lengthy, but it sets out what we should hope to expect to see in the withdrawal agreement that is currently being negotiated by the Prime Minister and the European Commission. I think that a lot of people expected, having passed phase 1, that this was going to be the moment to talk about trade and the sort of deal we were going to get. That is not where we are in the negotiation. We have entered a period of talks about talks—that is simply where we are in this phase 2 arrangement. The article 50 process specifies that, after we have buttoned down a transition arrangement—I shall come to that in a minute—we can perhaps hope to get a framework for our future relationship. That could easily be a single side of A4 with very warm words saying, “Let’s all work together,” and we would then be supposed to depart on our one-way journey without knowing for sure where we were heading.

I have put into new clause 2 the sort of basic headings that we would expect to see in a pretty basic trade agreement. If the withdrawal agreement is to be acceptable to me, those things need to be spelled out, because I could not recommend an agreement to my constituents unless we had buttoned down some degree of certainty with our EU counterparts so that we knew what we were to be getting.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 2:15 pm, 17th January 2018

The issue of the withdrawal agreement was supposed to be resolved last December, as part of phase 1 of the negotiations. Does the hon. Gentleman agree that it is abundantly clear that there are massive potential pitfalls, particularly in respect of the relationship with the Irish Republic, in the translation of what appears on the face of it to have been a mutually convenient fudge into what will in fact be a binding treaty obligation?

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

That is absolutely right, and the right hon. and learned Gentleman neatly and helpfully moves me on to my new clause 3, which deals with the question of the Irish hard border. I think that many people read the phase 1 agreement in an optimistic light. In many ways, those words were all things to all people. The can was kicked down the road, but there will have to be a translation into some sort of legal text by the time we get to the withdrawal agreement. Heaven help us when the two sides to the negotiations have to start talking in specific terms.

The Prime Minister had a slightly different view from the Republic of Ireland of what the phase 1 agreement meant. She reported back to the House that it was simply to be restricted to the issues listed in the Belfast agreement, which does not, of course, include trade in goods, to mention just one small policy area. There are massive questions about the border between Northern Ireland and the Republic of Ireland. People in that area share reciprocal healthcare, as well as environmental factors such as rivers, streams and lakes. They have a shared energy market and shared fisheries, food and plant arrangements. All those are shared because of the very geography of what are two distinct countries, so trying to fudge the issue just will not work, particularly if the UK is a third party.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

Is not it essential that at some stage in these Brexit negotiations the Government legislate to protect the fundamental principles of the Good Friday agreement—the Belfast agreement? Those principles include freedom from discrimination, equality under the law and parity of esteem. They are fundamental principles—I could go on listing them, but I will not—so is it not essential that the Government protect them?

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

I believe that that is essential. I completely agree with the hon. Lady, which was why I took the exact words from the phase 1 agreement to create the text of new clause 3. If the Government really mean to commit to there being no hard border, they should enshrine that commitment in the Bill. That is the test for the Government—it is what they have to prove if they really believe that this was not just some mealy mouthed commitment to get them through a particular difficulty in the short term.

Photo of Ian Murray Ian Murray Labour, Edinburgh South

My hon. Friend has spoken about the island of Ireland on many occasions during our scrutiny of the Bill. Could not this complicated issue be easily resolved, and does not the resolution lie in the customs union and the single market?

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

That is indeed the case, but the Prime Minister said, “Oh no, that’s a red line.” The difficulty is that Prime Ministers can get into stubborn positions. Are they going to have to back down? How do they deal with these things? It would be a measure of the Prime Minister’s status and stature were she to say, “On reflection, I have looked at this issue and it cannot be solved.” I know that the Under-Secretary of State for Exiting the European Union, Suella Fernandes, will be encouraging the Prime Minister to do that, because she has that way about her. The Prime Minister should change her mind and say, “Things have changed.”

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

My hon. Friend is obviously making some absolutely excellent points, but the crucial thing is how all this matters practically for people and businesses. I wonder whether he saw yesterday’s concerning announcement about the opening of a new ferry route between Spain and the Republic of Ireland. The port of Cork expressly said that it was doing that to avoid having to come through all the Brexit uncertainty that was being created in the United Kingdom.

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

I did indeed see that. Think of all the distorting arrangements that will pop up.

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

If the hon. Gentleman will allow me, I must make some progress, because I have to talk about new clause 4, which relates to the divorce bill—the payment or the settlement. The Prime Minister said that the amount would be somewhere between £35 billion and £39 billion. When the Under-Secretary of State for Exiting the European Union, the hon. Member for Fareham, was on “Question Time”, she said that that was absolute nonsense and would never happen, but it turns out that £39 billion equates to over £700 for every adult in the UK. That is how much we are talking about. That is £700 a head for all the men and women in her constituency who voted for her and all those who did not vote. Strangely, that did not feature on the side of the red bus, and the notion of £350 million a week for the NHS has disappeared into thin air. We do not want to catch that particular bus ever again.

I am glad that Nicky Morgan, who chairs the Treasury Committee, has written to the Comptroller and Auditor General of the National Audit Office to ask him to examine the reasonableness of the sum. The phase 1 agreement said that a methodology had been agreed between the two sides to calculate the sum, but that has not been made available as far as I can see. I hope that the NAO will have that methodology, and that it will go through the agreement with a fine-toothed comb to find the exact figure that our constituents will end up paying.

Amendment 39 seeks to tease out what is happening on the question of transition, for which there are all sorts of metaphors. My hon. Friend Chuka Umunna talked about there being no safe harbour, but the metaphor I like to give is that, if we have a cliff edge, transition is about our having a plank going a few feet out from the cliff edge: it would perhaps give us a bit of extra time, but it would not obviate the precipitousness of the fall that could affect the country—it simply defers when that will happen. The European Union side is absolutely clear that if we are going to have a transition, it will need to be on exactly the same arrangements that we have now, minus having Britain around the table with a say on the rules. That was why I tabled amendment 39. The Government have to get on with securing a transition, and the Chancellor was right to talk about it as a diminishing asset.

The arrangements had better be visible and available for businesses to see by the time we get to Easter and the March European Council meeting, because they need to know what will happen. Otherwise, quite naturally, they are going to have to make contingency plans to protect their business thereafter. I was talking to the American Chamber of Commerce to the European Union, which has come up with the sort of transition deal that it believes that many of its firms that work and invest here, employing many of our constituents, want to see. It thinks that a transition needs to have two distinct aspects. First, there needs to be a bridging period during which we can settle all the rules, finish all the negotiations, and establish the treaties and procedure. That will definitely take more than 21 months, and I saw that the chief executive of the EEF was completely scathing yesterday about how little could be achieved in the period currently envisaged. Secondly, there needs to be an adaptation period—a phasing in of the new rules. We need to start getting into exactly what the transition will involve, and that was why I tabled amendment 39.

My final point is about new clause 6, on which I will seek the views of the House if I get the opportunity. It relates to what will happen if unforeseen circumstances arise in the process. What will right hon. and hon. Members do if the Government come back with an unacceptable deal? We need to know what our options are. We have asked the Prime Minister on many occasions about the article 50 process. It is a notification process, and she sent the letter in, but when we ask whether the process can be extended, altered or revoked, she says that that is not the Government’s policy. That, of course, is not the question we are asking. We are asking whether the process can be extended. What is the legal advice? The Government have obviously taken legal advice, and I suspect that it says that the UK, if it so chose and the circumstances arose, could unilaterally revoke article 50. We would of course have to do that before exit day, because if we chose to do so after exit day, we would be looking to apply to rejoin the EU under article 49, which would mean our losing many of the benefits in our current deal. We in the House of Commons need to know the options available to us.

Photo of Liz Kendall Liz Kendall Labour, Leicester West

On that point in particular, does my hon. Friend agree that all the new clauses and amendments are about trying to get greater openness and honesty about the pros, cons and trade-offs of the choices we face as a country? It is vital that that information is available not just to this House, but to the public. It is our job as Members of Parliament to put it before the country, because these huge decisions have big consequences, but we have had to drag the Government every step of the way towards putting such information before the country.

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

My hon. Friend is absolutely correct. It is important that our constituents know that nothing is inevitable. One parliamentary decision cannot bind a successor Parliament, because Parliament has the capability to do a number of things. Although the article 50 notice signalling the Government’s intention has been sent in, it is not a binding commitment.

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

It might be my intention to give way to the hon. Gentleman, but I might change my mind by the time I get there. I can walk towards a Division Lobby while thinking that it is my intention to vote for a particular issue, but I might change my mind at the last minute. We are all able to change our minds. That is the nature of life, and we can all do the same in a dynamic democracy and Parliament.

Article 50 says that treaties shall cease to apply from

“the date of…
the withdrawal agreement or, failing that, two years after the notification”,

but we will have left only after those events. Article 50 is of course silent on what happens during the two-year interim period before the agreement. We are still full members of the European Union, prior to the withdrawal agreement or the expiry of the two-year period, so it stands to reason that we should continue to act as such. The framers of article 50, who include Lord Kerr, said that a “request readmission after negotiation” clause was not necessary because that was taken as read. That is how the 1969 Vienna convention on the law of treaties operates, and it is accepted by many jurisdictions around the world. Article 68 of the Vienna convention states:

“A notification or instrument…
may be revoked at any time before it takes effect.”

That is the widely understood nature of such treaties.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I just thought that I would draw the hon. Gentleman’s attention to the European Union (Notification of Withdrawal) Act 2017. I do not think that he voted for it, but 499 other Members did, and it passed the House of Lords, so I would have thought that that would be quite a difficult problem for him to overcome.

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

No Parliament can bind its successor, and that Act was passed in a different Parliament. It may not be necessary for the UK to consider extending or revoking the article 50 process, but it might prove necessary. MPs and the public have a right to know that such options are available. Nothing is inevitable about this whole process. Choices and options are available to this country, and the Government should publish their legal advice and a summary of that advice. There is ample precedent for doing that. Indeed, when Mr Grieve was Attorney General, he published summaries of legal advice. The measure does not even ask for a breach of the confidentialities between client and legal adviser, but this House is entitled to a summary. We need to know and the public need to know, which I is why I want to press new clause 6 to a Division, if I get the opportunity.

Photo of Bob Neill Bob Neill Chair, Justice Committee

There will be a change of tone, because the speeches so far have been understandably wide ranging, and mine will be much more narrow and technically focused and also much shorter. I say by way of preface that it is both strange and regrettable that the analysis of my right hon. and learned Friend Mr Clarke was not adopted by the remain campaign, because we might have been saved a great deal of trouble if it had been. Frankly, he speaks passionately and well, and I prefer the economic analysis as to risks and/or benefits of someone who was one of the most distinguished post-war Chancellors to that of those who have not had the opportunity to hold those exalted positions and whose view of the matter sometimes seems a little more based on articles of faith than on practical experience.

That said, I want to turn specifically to new clause 22, which is in my name. It is relevant to what has gone before. At the end of the day, we all accept that because of the decision that was made, we must find a way forward now that gives the best possible arrangements for our business and our jobs. In particular, I want to concentrate on the requirement that business has for maximum certainty in relation to the treatment of any deficiencies in the retained EU law, and it is dealt with in clause 7 at some length. It is particularly important for all businesses, but especially for the City of London and for the financial services sector, which, as has been rightly observed, is about 80% of our economy. In the course of the Committee stage, I moved a number of probing amendments, and this is a probing amendment, too, which seeks greater clarity from Government about exactly how we deal with some of the nuts and bolts of those matters.

The clause 7 scheme of course sets out a means for dealing with this deficiency by means of statutory instruments—I understand that. I previously proposed a fall-back scheme as an alternative scheme of interpretation to deal with deficiencies. In doing so, I had the advantage of advice from the City of London Corporation, the Financial Markets Law Committee and the International Regulatory Strategy Group, probably as great a body of expertise on financial regulatory law and process that can be found anywhere in a square mile—if I can put it that way—and not something that one would wish to see lightly ignored.

I am glad to say that in the course of those discussions, Ministers—the Minister on the Bench today, my hon. Friend Mr Baker, and my hon. and learned Friend the Solicitor General—were most constructive in their response. I accept that the Government are genuinely seeking to tackle this matter and to minimise the need for dealing with it by means of regulation as far as possible. For that simple reason, it looks as if there could be 800 to 1,000 pieces of secondary legislation needed. With the best will in the world, it is a massive task, so what I have done now is to return with a much narrower new clause, which will deal only with the default position in those circumstances where, for whatever reason, it was not possible to deal with potential deficiencies by means of regulation under clause 7. Therefore, it is even more of a stopgap, but there is still a sentiment among people in the business sector that things inevitably crop up that are sometimes time-sensitive—perhaps in the course of ongoing litigation or in the interpretation of a significant commercial contract where it may not be possible to wait for the process of secondary legislation to go through. It is that important but narrow point that my measure is designed to deal with.

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union 2:30 pm, 17th January 2018

My hon. Friend gives us a salutary reminder that it is important that we make all the appropriate corrections before exit day, and the Government do want to make all of those corrections and to ensure that the law is accessible for all. I can confirm to him that Government Departments and the centre of Government are listening to industry, including the City, as part of our planning. We have put in place procedures and tools to ensure that we prioritise the most important corrections and so that nothing is missed out. On top of that, as the Bill provides for, we have put in place an urgent procedure in case of last-minute developments to which he refers.

Photo of Bob Neill Bob Neill Chair, Justice Committee

I am very grateful to the Minister for that helpful intervention. I am conscious, as I said, that the Solicitor General and other Ministers have done work on this, and that will shorten what I have to say. I hope that the Minister might meet me in due course to discuss the way in which the urgent procedure will operate so that we can get more detail. That is what I was seeking to achieve—to make sure that we have a means of dealing with something when a decision needs to be made pretty much in real time under these circumstances. That reassurance that the Government will find the means of doing that enables me to confirm that I shall not be pressing the matter. It does of course apply to situations in which, for whatever reason, something has been overlooked in the transition process, or in which something has cropped up that could not reasonably have been foreseen by means of the best endeavours. Against that background, I welcome the Minister’s clarification on that matter. I gather from his nod that he is happy to discuss the matter further with me, so I need not trouble the House any longer.

Several hon. Members:

rose—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. A considerable number of Members are seeking to catch my eye, and colleagues will be conscious that these proceedings must conclude at 4.30 and that it is reasonable to allow the Minister some considerable time to respond to the points made. Therefore, a certain self-denying ordinance is required if I am to enable everybody to contribute. Peter Grant speaks for his party from the Front Bench and, of course, must be afforded a decent opportunity, but I know that he will want to tailor his contribution to take account of the interests of others.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

With the consent of the House, I rise to speak to amendment 59 in the name of my right hon. Friend Ian Blackford and other right hon. and hon. Members, and to amendments 9 and 56 and new schedule 1.

Before I speak in more detail about amendment 59, may I commend Mr Leslie for the amendments that he submitted? What he has done is to remind us of what a complete sham this entire process has been. Almost 90% to 95% of the way through these eight hours of debate, the Government who had promised, day after day after day, to listen to the debate and to take appropriate effective action still have not corrected some of the glaring deficiencies in their own Bill, the most serious of which, perhaps, is the fact that we still do not have any statutory guarantee that the Northern Ireland peace process, the Belfast agreement and all that that implies, will be protected in law. If the Government cannot be trusted to bring forward amendments to correct such a desperate deficiency in their own legislation, how can they expect this House to trust them with the draconian and unprecedented powers to use ministerial directive to correct deficiencies in domestic legislation after we have left?

Amendment 59 seeks to ensure that the withdrawal agreement can only be implemented when we also have an agreement to remain in the EU single market and customs union. Let us be honest: everybody knows that, on a free vote of this House, there would be a substantial majority in favour of remaining in the single market and the customs union. My plea this evening will be for all of those who know that that is in the best interests of their constituents to set aside the demands of the party Whips and to go through the Lobby in support of this amendment. We can win this vote this evening if all those who know that it deserves to win are able to set aside the demands of the Whips and vote for it. We can take a decision tonight that will keep us away from the cliff edge, not just for two years but for very much longer.

I am very grateful to colleagues from the Liberal Democrats, Plaid Cymru and the Green party who have signed this amendment. Although there have been no signatures from Labour Members, either from the Front Bench or the Back Benches, I appeal to all of them to support this amendment today.

Let me first deal with the question of the constitutional or democratic legitimacy of the amendment. One of the very disturbing aspects of the referendum debate, which has continued all the way through the process since then, has been the degree of hostility and open hatred that has been created against anyone who speaks, or even thinks, against the wisdom of the Government, the newspaper editor, the blogger or whoever. I have a good bad example: just a day or two ago, a group of MPs who had the temerity to go over to Europe to meet Michel Barnier were denounced as traitors—treachery with a smiling face—by one well known bloggist. Apart from the fact that such inflammatory and violent language has no place in any supposedly respectful debate, I want to remind the House of some facts of our membership of the single market—facts that I appreciate will be very uncomfortable to some Members, but that are still utterly incontrovertible.

It is a matter of fact that the people of the United Kingdom have never voted in a referendum about membership of the single market or the customs union. This House had the opportunity when the European Union Referendum Bill was on its way through Parliament. We could have decided to ask questions about the customs union and the single market, but the House and the Government chose not to. Having chosen not to ask the question, none of us—including me—has any right to decide that we know what the answer would have been.

It is a matter of fact that it is possible to be in the single market and the customs union without being a member of the European Union. Hon. Members will have different views as to whether it would be wise, appropriate or in our best interests to do so, and they have every right to debate the benefits of membership of the single market and the customs union. But anyone who insists that it cannot happen is not engaging in debate; they are engaging in fiction. We have had far too much fiction in this debate already—from both sides, it has to be said—as Mr Clarke mentioned earlier. The decision to leave the single market was a unilateral political decision taken by the Prime Minister without any prior consultation with the people or with Parliament. It cannot, under any circumstances, be described as an inevitable consequence of the vote to leave the European Union.

Finally, it is a matter of fact that when the Conservative party fought on a manifesto that said it wanted to stay in the single market, it won an overall majority of seats in this place—the only time in the last 25 years that it has managed such an achievement. It is also a fact that the Conservatives lost that overall majority two years later, when they stood on a manifesto saying that they wanted to take us out of the single market. Nobody can claim that that is clear evidence of a popular democratic mandate to stay in the single market, but it certainly blows to smithereens any nonsense that there is any mandate for us to leave.

I am conscious of the need for brevity from me as well as from others, so I will not go into the full and detailed argument for staying in the single market, as that would take us from now to Brexit day, if not beyond. However, the right hon. and learned Member for Rushcliffe referred to the latest analysis produced by the Scottish Government, entitled “Scotland’s Place in Europe: People, Jobs and Investment”. I certainly accept his caveats that we cannot be sure that the forecasts and projections in it are accurate. They are certainly not intended to be precise or definitive.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Environment and Rural Affairs), Chair, International Trade Committee

I have found some media chat saying that the Scottish Government’s analysis of staying in the single market was alarmist, giving the figure of a 2.5% loss in growth. That is actually less than the figure put out by the UK Treasury for the loss of growth of just being in the single market, with no deal and the Canadian-style option far worse still.

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

I am grateful to my hon. Friend for that intervention, but I should put it on the record that I do not use Her Majesty’s Treasury figures as the touchstone for reliability or honesty; that is just a personal gripe of mine.

“Scotland’s Place in Europe: People, Jobs and Investment” is available in summary form and in all its 58-page glory. As a bonus, the back page contains the full text of the United Kingdom’s impact assessment of leaving the European Union. The one that I have is actually the Chinese version for those who understand Chinese.

Among the likely—perhaps very likely—consequences, the Fraser of Allander Institute has forecast that GDP in Scotland could fall by £8 billion over a 10-year period; that the real value of wages in the pockets of the people of Scotland could fall by 7%, including those who cannot afford to live on the wages they have just now, never mind on 7% less; and that 80,000 jobs in Scotland could be at risk. The updated document published this week indicates that the cost of leaving without a deal would be of the order of £2,300 for every citizen in Scotland. Our economic output could fall by 8.5%. That has to be the recession to end all recessions.

Exports from Scotland to the European Union currently run at £12.3 billion a year. If we add other exports that we can only carry out because we have free trade agreements as part of our EU membership, that figure increases to a fraction under £16 billion. Some 56% of Scotland’s current international exports are either to the European Union or to countries with which we already have a free trade agreement, and that could increase to somewhere close to 90% by the time we actually leave the single market and the customs union. How much of that is absolutely, unconditionally guaranteed still to be available after we leave? Right now, the answer is nil or very close to nil. That is the economic cost that we could well be subjected to if we leave the single market and the customs union.

I have not even mentioned the horrific social cost. We saw another heart-rending story today of a lady from Spain who has given 15 years’ service to the NHS, but who has given up and gone back to Spain. Somebody actually queried, “Why is that newsworthy?” Well, given the current recruitment crisis in the NHS, if even just one more well-trained professional leaves, I think it is a bit more newsworthy than somebody leaving a jungle because 250,000 people phoned Channel 4 and asked for them to be thrown out.

It is established that the Government—almost unbelievably and certainly incompetently—have got us this far without undertaking a proper impact assessment to advise themselves of what might happen to ordinary people in these islands when we leave, particularly if we leave without remaining members of the single market and the customs union. The Government tried to hide their own incompetence by refusing to let the public, and initially refusing to let Parliament, see the assessments that they had not done. They said that publishing even the little work that had been done would be disastrous to the negotiations and give too much of an advantage to the negotiating partners or enemies, as I have heard them described by Tory Members. It would hand over information to the EU that needed to be kept top secret and that the EU could never have got for itself.

Among these jealously guarded state secrets, we find in paragraph 6 of the “Electricity and Renewables Sector Report”, the astonishing revelation that

“Electricity is a fundamental part of modern society. Residential and industrial users rely on its use to ensure basic and vital needs such as lighting, heating or refrigeration are met on a daily basis.”

I am glad that I saw that in the Government’s impact assessment, because I did not know that before and neither did the EU. In the “Defence Sector Report”, we discover that

“The Government is a key supporter of the defence sector”.

And in the “Gambling Sectoral Report”, the EU’s very own James Bonds can now discover that gambling legislation in Northern Ireland is devolved, when there is a Northern Ireland Assembly to exercise those powers, and that a lot of gambling services in the UK are actually owned by companies registered offshore.

Those are the kinds of facts that the Government try to keep from us. They were eventually forced to disclose those facts, but we can only wonder what else the Government know but are refusing to tell us. They do not trust this Parliament or the people of these islands with this information, yet they expect us to trust them to have unfettered rights to decide the future of these islands and the 60 million people who live here.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 2:45 pm, 17th January 2018

Since the hon. Gentleman raises public trust and legitimacy, would he acknowledge that the extension of that argument is that, were we to say to the British people that their express will in a binary choice to leave the European Union were to be frustrated through obfuscation, prevarication, delay and confusion, the trust between this House and the people would be broken in a way that would be very hard to mend, to the cost of not only everyone here, but our whole system, for a very long time indeed?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

For the avoidance of doubt, I will repeat what I have said in this place before: I think we have to accept the views of the people of England and Wales who have expressed a wish to leave the European Union. Unless the people of those nations give a contrary view at some future point, that view has to be respected.

Some 62% of my people voted to stay in the EU. I want to hear just a single word from this Government that indicates they are prepared to change anything in their chaotic Brexit plan to recognise the sovereign will of the people of Scotland and, indeed, the majority of people in Northern Ireland who also voted to remain. Half the member states of this Union voted to remain in the EU, and there has been no recognition whatever of that fact from the UK Government so far. They have even shown their contempt: having promised to table amendments to correct yet another deficiency in the Bill on the impact on the devolved nations, they then changed their minds and are going to leave it to the other place, where nobody is elected or has any democratic mandate to do anything.

The Government’s woeful handling of Brexit from day one demonstrates that they are so incompetent that they do not even trust themselves to know what is a state secret and what is very common knowledge. It would be wrong for this House to hand over to a competent, cohesive Government the draconian powers contained in the Bill. It would be criminally negligent to hand them over to a Government so disorganised that they could not even appoint their own party chairman without announcing the appointment of the wrong person.

While the SNP’s main purpose has been to scrutinise and seek to improve the proposal from the Government, it has to be said—it hurts me greatly to do so—that the performance of Her Majesty’s official Opposition to date has left a great deal to be desired. We are seeing signs of improvement, which I warmly welcome, on membership of the single market and the customs union. Keir Starmer has very helpfully tweeted recently reminders of the six red lines that his party had set out last year. Matthew Pennycook referred to them earlier.

The second of those red lines is whether the deal delivers the “exact same benefits” as we currently have as members of the single market and customs union. The only way that that red line can be satisfied is if we remain in the single market and the customs union. I hope that in the intervening period since he sent that tweet, the right hon. and learned Gentleman and his colleagues have managed to persuade the Leader of the Opposition that it is time to get down off the fence and to stop doing the Tories’ work for them and time for every Labour MP in this House to go through the Lobby to vote for this amendment to keep our place in the single market.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Environment and Rural Affairs), Chair, International Trade Committee

My hon. Friend talks about the principal Opposition party—by number, that is. Is he aware that in the past year, for five months they supported the single market, for five months they were against the single market, for two months they were uncertain, and sadly there were only two months—July and August—where they had a consistent policy without alternating every other month?

Photo of Peter Grant Peter Grant Shadow SNP Spokesperson (Europe)

As I said, I have been disappointed in the performance of the official Opposition up until now. I think we are seeing some signs of cohesion, and quite a number of speakers have been very firm in favouring the single market, as indeed we have heard across the House.

I do not want to point out mistakes that have been made in the past or score political points. There is a time and a place for that. The situation that we will face within the next couple of hours is so important and could have such devastating consequences for all our constituents that how about, just for a couple of hours, we forget the mistakes that each other has made and look at the catastrophic mistake that we may be about to make if we allow the Bill to go through without amendment 59 or something similar being passed? This may be the last chance we have to keep ourselves away from the cliff edge. I say to all those in this House, regardless of their party allegiance, who know that the single market and the customs union is where we have to be, please come through the Lobby with us tonight to vote to make sure that that happens.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The European Scrutiny Committee, of which I have the honour to be Chairman, has been holding inquiries into the fundamental constitutional implications of the Bill, including clause 5. As is now shown on its website, I have had correspondence with the Prime Minister on its behalf since December. The provisions I refer to would empower the courts, for the first time in our Westminster-based legislative history, to disapply Acts of Parliament. This is no theoretical matter. Indeed, we are advised that such disapplication is likely to apply to a whole range of enactments, including those relating to equality, terrorism, data protection and many other matters.

I raised this massive constitutional issue, as I regard it, in Committee on 14 and 21 November, including by reference to the authoritative statements made by the late Lord Chief Justice Bingham in chapter 12 of his book on the rule of law and the sovereignty of Parliament. Let us bear in mind that he is one of the most authoritative judges in recent generations. He says:

“We live in a society dedicated to the rule of law;
in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes;
in which Parliament may therefore legislate in a way which infringes the rule of law;”—

I repeat, “infringes the rule of law”—

“and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail”—

I repeat, “cannot fail”—

“to give effect to such legislation if it is clearly and unambiguously expressed.”

In that book, he publicly criticised the attitude of Baroness Hale, who is now President of the Supreme Court, and Lord Hope of Craighead for suggesting that the courts have constitutional authority as against an Act of Parliament.

Lord Bingham also specifically approved the analysis of what he described as the “magisterial” authority of Professor Goldsworthy, whom he quoted as follows:

“the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot, by themselves, change it…
What is at stake is the location of ultimate decision-making authority…
If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

He went on to state that they—the judges—would then be transferring the rights of Parliament to themselves as judges. He says:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

That is the basic principle.

Members of this House and the House of Lords, including former Law Lords and members of the Supreme Court, are themselves deeply concerned about—

Photo of David Jones David Jones Conservative, Clwyd West

Lord Neuberger, who is the former President of the Supreme Court, has also expressed concern about the perceived illegitimacy of judges overturning Acts of Parliament. Is my hon. Friend concerned that the power in clause 5 to disapply Acts of Parliament might result in a worrying politicisation of the judiciary that I would have thought would be unwelcome not only to hon. Members but to the judges themselves?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I am indeed. I am grateful to my right hon. Friend, who also serves on the European Scrutiny Committee. The provisions I refer to would be express provisions. Therefore, the question of principle is fundamental and will also, no doubt, be taken up in the House of Lords. Furthermore, former Law Lords and members of the Supreme Court have expressed their concerns.

The European Scrutiny Committee’s unanimous view when we met this morning was that Parliament as a whole needs a solution that confirms the principle of parliamentary sovereignty along the lines of declarations of incompatibility under the Human Rights Act 1998, as I indicated in my correspondence with the Prime Minister, whose letter I received on 9 January. To take this forward, may I ask my hon. Friend the Minister to intervene to give me and the House an assurance that when the Bill is in the House of Lords, the Government will constructively engage with the European Scrutiny Committee, with any other Committees of both Houses and with the advice of the Attorney General and the Lord Chancellor to explore and find a proper solution to the constitutional issues I have raised in the national interest?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

I am grateful to my hon. Friend for the case that he has made. The Government are well apprised of the issue that he has brought to the House. It is absolutely right that we respect and uphold parliamentary sovereignty—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. Before the hon. Gentleman continues, I had—I will not say revelled in the expectation, but had been taking quiet satisfaction in the expectation, that Sir William Cash had in fact completed his speech.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I was completing my speech by inviting the intervention that my hon. Friend is now making.

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

That is why in the Bill we treat retained direct EU legislation as primary legislation for the purposes of the Human Rights Act, and why we have taken the approach we have to challenges based on the general principles. Bearing in mind what my hon. Friend has said—and, indeed, what my right hon. Friend Mr Jones has said—and the view of the Select Committee, which he has just set out, we will of course listen carefully to him and his Committee, and the other individuals he has mentioned, as the Bill continues its passage.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 3:00 pm, 17th January 2018

I am most grateful to my hon. Friend for his response. May I simply say that these are issues of immense constitutional importance? My right hon. and learned Friend Mr Grieve mentioned that yesterday and we have had debates on it in Committee, and I am most grateful for my hon. Friend’s assurance.

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

It is always a pleasure to be in the Chamber to hear Mr Clarke. When I hear his rational, measured comments on the European Union, I wonder whether his memoirs will include a substantial chapter on how his party has been overtaken by the old guard ideologues on the fourth row and, indeed, the new, modern ideologues sitting on the Treasury Bench.

We heard from John Redwood, who is no longer in his place, that we have had adequate debating time for this Bill. As a Member who has made speeches often of only three or four minutes’ duration during the course of these eight plus two days, I would say that, while I believe people should be able to put the content of what they want to say into a concise speech, it is actually rather difficult to do that in three or four minutes on a subject of this nature. I would therefore challenge anyone who says we have had adequate time to debate this issue.

I support several amendments in this group. I support new clause 18, which would lock in the Government’s intentions to respect the environmental principles and to set up an independent environmental regulator, and new clause 21, which would provide continuity on environment powers.

I support new clause 20, which would establish a citizens’ jury. I mentioned that in an earlier debate. A citizens’ jury has already been held on this subject; it had a balance of 52% people who were leavers to 48% who were remainers. It had some really in-depth discussions on issues such as freedom of movement. Interestingly, they came to the conclusion that they were in favour of freedom of movement, albeit arguing—the right hon. and learned Member for Rushcliffe made this point—that the Government should apply the powers they already have to deal with the issue more effectively. Indeed, if the Government had sought to engage effectively with the other EU countries on the issue, I suspect they would have been able to achieve more than has been achieved.

I support new clause 2, which sets out what should be in the withdrawal agreement, and amendment 59. I thank the SNP for co-ordinating the Opposition parties—unfortunately, minus the official Opposition—in getting support for amendment 59. One of the positive things about the Bill, and there are not many of them, is that the Opposition parties and, on occasion, Conservative Members have worked quite constructively together to try to ensure that the Bill is better than it was at the outset.

I want briefly to mention new clause 11. Again, I welcome the cross-party support that the Liberal Democrats have received, with support from Labour Back Benchers, the SNP, Plaid and the Green party. What does new clause 11 seek to do? It seeks to achieve two things. I intervened earlier on the right hon. and learned Member for Rushcliffe when he was talking about the impact assessments. New clause 11 tries to ensure that the Government have to produce an assessment of the impact on the UK economy and each nation, province and region before we have a so-called meaningful vote. I cannot see any circumstances in which this Parliament and its Members can have a meaningful vote on an agreement or on no deal if we do not have an assessment of the impact.

I must say that departmental responses to my parliamentary questions about this have hidden behind the fact that there is something called an “Impact Assessment” to refuse to make available to Parliament an assessment of the impact. I point out to Departments that, to be grammatically correct, if I had meant the “Impact Assessment”, I would have used a capital I and a capital A, and I would then have received the impact assessments that have been done on Government Bills. However, I did not do so, and in common parlance I was entitled to expect the Government to provide an assessment of the impact, rather than to hide behind the niceties of the ways in which parliamentary Bills are dealt with.

The first purpose of new clause 11 is to force the Government to publish an assessment of the impact. Like the right hon. and learned Member for Rushcliffe, I have serious concerns about the reasons the Government would not want to make such information available. I cannot think of any other circumstances in which we, as a Government and as a Parliament, would be about to take a decision that will have the greatest impact on the economy, our security and our diplomatic profile and stature in the world without any impact assessment provided by the Government. I and other Members have been to see the so-called sectoral analyses—they were under lock and key for no reason whatsoever—and, frankly, there was nothing of any great substance in them that could not have been obtained from going online and googling the various sectors. We need to have this information.

I hope that the Minister who responds may for once be willing, when they respond, to explain why they do not want to make this information available to Members of Parliament. The Solicitor General has heard my comment. I am not sure whether he is going to respond, but I hope he will make a point—either by responding himself, or by getting the Box to provide him with an answer that can be put on the record—of explaining why the Government do not want to share with Members of Parliament an assessment of the impact that whatever deal they come up with, or indeed no deal, will have. We need that, and I would love to have it put on the record.

The second part of new clause 11 is about ensuring that, if Parliament does not agree to the deal or does not agree to no deal, either article 50 will be extended or—frankly, this is my preferred option—article 50 will be rescinded. Members who have looked at the new clause will see that, as I have said, it has two halves. First, there is the process of securing an assessment of the impact. If an agreement is reached, an assessment of the impact must be available. Equally, if no agreement is reached, such an assessment must be available.

Secondly, the Government would have to put a motion to the House that would allow Parliament to approve the intention to leave the EU without a deal. I guess the House could do that, although I hope we would not do so. If Parliament said no to that, however, other options would kick in requiring the Government to go back, in the very limited time still available, to try to secure a deal before March 2019; to go back to the European Council and request an extension of article 50; or to rescind the notice under article 50. It would clearly be very helpful to have the legal advice that the Government have received. I and many Members believe that the legal advice would have made it very clear that article 50 can be revoked, and the only reason why the Government do not want to make that information available is that it helps their case to pretend that it cannot be revoked.

I am aware, Mr Speaker, that several Members want to speak and there is very little time left. I hope I have put succinctly the reasons not only why I support several of the amendments—if they were pushed to a vote, I would be very happy to support them—but why I intend, subject to your agreement, to press new clause 11 to a vote.

Several hon. Members:

rose—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. On my reckoning, about 12 people want to speak. I advise the House that it is reasonable for the Minister to have at least 20 minutes to reply to the various points that have been made—[Interruption.] Someone chunters from a sedentary position, “No more.” The Minister should certainly be allowed 20 minutes, and Members can do the arithmetic for themselves. I am encouraged, as I call possibly the most courteous Member of the House of Commons, Mr Dominic Grieve.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Thank you, Mr Speaker. I shall endeavour to practise courtesy by act rather than by anything else, in being brief.

It is a pleasure again to participate in this afternoon’s debate, which is wide-ranging and has moved away from the rather narrow focus of some of the perfectly sensible amendments that have been tabled and that are designed to explore the undoubted deficiencies in the legislation; for example, the Opposition have put forward sensible proposals in new clause 1. Those are matters that we have looked at for a considerable number of days.

I wanted to focus on an issue that has arisen this afternoon and is a particular concern to me. In doing so I do not want to repeat what my right hon. and learned Friend Mr Clarke said. I agree with every word he said, and there is no point in my saying it again. There is a separate angle, however, on which we might pause and reflect. New clause 17 raises the issue of whether we should have continued participation in the single market and customs union.

If we look at the Bill as drafted and at its original intention, particularly now that the pernicious effects of clause 9 have been removed, we can see that it is about the legal order of the United Kingdom after we have left with no deal at all. So an argument can be made that this legislation is perhaps not the most satisfactory place to try to bring in the single market and customs union. However, that raises an entirely legitimate issue. Ultimately, as we trundle on with the legislation it becomes more and more apparent how different it is from the Government’s intention regarding the end product that it wants the country to enjoy.

The Prime Minister set out her vision in the Lancaster House and Florence speeches. As I have said before, but it is worth repeating, if she succeeded in achieving everything that she set out, there might well be broad consensus in the House, because we would lose those aspects of EU membership that we do not like and at the same time we would retain all the benefits of EU membership that we—or at least many of us, the vast majority of hon. Members—consider desirable.

The truth is that most of us—again, I suspect—in the House know that that is unlikely to be achieved. We are asking our EU partners to engage in the bending of the rules of the legal order, which is not something that can be readily obtained. We started out on this negotiation with a major fallacy: the EU can somehow be twisted around from matters of self-interest into entirely changing its nature. In fact, it is an international treaty organisation underpinned by law: that is what it is. Having visited Brussels on Monday, it was brought home to me—I already knew it—very clearly that that is indeed the nature of the entity with which we are dealing. Unless we are realistic about that we cannot hope to secure a reasonable outcome to our negotiations.

What troubles me particularly is the timing of all this. The reality is that the EU, for very good reasons, wants order. It is a legal order, and it wishes order to exist, even when countries are leaving it. The point was made to us that ultimately it would negotiate according to our red lines and, if we decide to put red lines down that make it impossible to reach the sort of agreement that the Prime Minister wants, we will not secure that agreement—it is very simple. On top of that—I would like to add this point to the one made by my right hon. and learned Friend the Member for Rushcliffe—all of this is likely to come to a head at a very late stage indeed for rational judgments by the House about what is in the national interest.

Some of my right hon. and hon. Friends on this side of the House seem positively to relish the prospect of the negotiations collapsing and our leaving the EU with absolutely no deal at all. I believe that that would probably be the single most catastrophic act perpetrated by any Government on this country in modern history, so I do not intend to allow that to happen. I simply make this point to my friends on the Front Bench, who have the difficult task of taking this project forward. On the point that is raised in new clause 17, this may not be the right place to amend the legislation, which is not particularly germane to it but, my goodness, it is a relevant point. At what point can the House and, indeed, the public have a proper understanding of what the Government have succeeded in negotiating? At the moment, it reminds me very much of the company set up at the time of the South Sea bubble in the early 18th century that said: “A company to be of great and inestimable value to its shareholders. Nobody to know what it is.”

That is what we have been asked, regularly and on a daily basis, to continue signing up to while the negotiations proceed. Furthermore, on the timings, it is likely that when we are finally told a bit more it may be too late to take the sensible decisions that the House ought to take in the national interest and in conformity with what the referendum result was all about.

We cannot abdicate that responsibility. In truth, we have been left completely in the dark. Indeed, the Government themselves are in the dark, because we do not even really know whether we can secure a withdrawal agreement, for the reasons I gave in an intervention regarding our relationship with Ireland. The transitional arrangements look pretty clear, but I fear—the pejorative term might be the vassalage that my right hon. Friend the Foreign Secretary dislikes—something that inexorably takes our country towards continuing membership of every institution of the European Union without our having any influence over policy making.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 3:15 pm, 17th January 2018

In his discussions with Mr Barnier, did my right hon. and learned Friend gain any impression that the European Commission, and indeed Mr Barnier himself, had taken on board the fact that in relation to the legal order to which my right hon. and learned Friend refers—the European Union and its institutions—article 50 actually represented a radical change by giving people the right to withdraw if they wished? That changed the nature of the European Union from the day on which article 50 was passed as part of the Lisbon treaty.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am not sure I entirely agree. I do not think that Mr Barnier has ever suggested that the United Kingdom cannot withdraw under article 50—we plainly can. Indeed, new clause 6 deals with the question of whether article 50 is revocable. I think that it almost certainly is, so it is a pertinent question for the House to ask, although it is not an easy one for the Government to answer, in fairness, as ultimately it could probably be determined only by the European Court of Justice.

I do not think that the fact that we can revoke article 50, or that article 50 has kicked in, alters the EU legal order. The EU intends to continue with the United Kingdom outside. On the question of our future relations with the European Union, we will be outsiders, and some things that we are asking for, including a special and deep relationship, are currently—and, I fear, for ever—incompatible with the nature of that legal order. We either have to be in or we will get something that is very much less than what we have set out as our request. I therefore say to my hon. Friends that these amendments are perfectly pertinent, because they raise questions that will be asked over and over again, and with greater urgency, as each week passes in the course of this dramatic year.

I will end by saying this to my hon. Friend Sir William Cash. I listened very carefully to what he had to say. He is an individual of complete and clear integrity when it comes to his own views about how the United Kingdom’s constitution should work, which is one of the reasons why he has been so dramatically opposed to our EU membership—a matter on which we differ—but here he was, highlighting that in the process of taking ourselves out of the European Union, we are smashing up our domestic constitution big time—“O Brexit! What crimes are committed in your name?” It is imperative that we in this House manage the process so that we prevent the sort of mischief that he has identified, but I am afraid that, in part, it is inherent in the nature of the venture that we have taken on.

Photo of Christine Jardine Christine Jardine Liberal Democrat Spokesperson (Scotland)

Does the right hon. and learned Gentleman agree that this constitutional danger is heightened by the fact that Conservative Members from Scotland are not listening to growing concerns about our lack of membership of the single market and the customs union, and the implications for our economic future, but simply following the Government through the Lobby?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am afraid that I disagree entirely—far from noticing any such thing, I have noticed the very reverse. My Scottish colleagues are very much alive to the constitutional implications of Brexit and have been working assiduously to address them, while not falling into the trap, as I am afraid the hon. Lady and some members of her party have, of constantly characterising what is a national constitutional debate—indeed, a crisis—in binary terms, with Scotland always appearing either as a victim or as having a halo over its head, neither of which, in the scheme of human existence, is justified.

Photo of Christine Jardine Christine Jardine Liberal Democrat Spokesperson (Scotland)

I think that the right hon. and learned Gentleman might have misunderstood what I meant, which is that the binary nature of what the Scottish Conservatives are doing is heightening the binary argument in Scotland, and indeed playing into the hands of those who seek nationalism.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am afraid that I disagree. My Scottish colleagues have been behaving with extraordinary good sense, particularly their leader, Ruth Davidson, and my colleagues here at Westminster. Perhaps I have misunderstood some aspect of the hon. Lady’s question. Far from seeing them as supporters of crazy ideas in the context of Brexit, I think that they have consistently shown a moderate common sense in trying to understand the wider United Kingdom position and Scotland’s distinctive position, and trying to take this forward. If I may say so, they are exactly the sorts of allies I want in the course of the work that I will continue doing in this House.

I have spoken quite enough and I thank the House for its indulgence.

Photo of Yvette Cooper Yvette Cooper Chair, Home Affairs Committee

I rise to speak to amendment 10, which stands in my name and those of colleagues across the House. I think this follows logically from the wise words that Mr Grieve has just delivered to the House. Like him, I support new clause 17, and I also want briefly to mention new clause 1 and amendment 44.

From the start of the Bill’s passage through the House, my concern has been about how it concentrates power in the hands of a small group of Ministers. Be we liberals, communitarians, socialists or conservatives, in this House we are democrats all. It goes against all our British political traditions to concentrate power in the way the Bill still does—even after the amendments have been made—over decisions that could affect our children and grandchildren for generations to come. The referendum decided that we will leave the EU, but it did not decide how, and those decisions should not be so concentrated in the hands of a small group of Ministers, especially in a hung Parliament.

In Committee, we often went one step forward and then two back with regard to the interests of parliamentary democracy. That is why further amendments are needed today. Ministers did agree to the amendments put forward by the Procedure Committee, which will give Parliament a bit more of a say over whether the affirmative or negative procedure is used for secondary legislation, but Parliament will not be able to insist on which procedure is followed or that changes should be made in primary rather than secondary legislation. That is why new clause 1 is so important.

The Bill would still allow a small group of Ministers to take away workers’ rights and equality rights, which have been hard fought for over generations and hard won through this place, and they would be able to do so with hardly any say from Parliament. Therefore, those of us who have been part of the fight for greater equality and for workers’ rights for many years cannot just stand by while those rights are diminished. Nor should any of us, whatever our view, be part of agreeing to the wide scope of ministerial powers still embedded in clauses 7 and 9, allowing Ministers to do simply “as they consider appropriate”. Amendments 44 and 2 are important attempts to limit those powers to what is necessary, and Parliament has a responsibility to do so. I hope that those in the other place, whose job is to scrutinise the Executive and stand up for Parliament, will consider these matters very seriously when the Bill reaches them.

Parliament has agreed that there should be more democratic say over the withdrawal agreement itself. The previous amendment 7, which was agreed to in Committee against the wishes of Ministers, made it clear that we must have a meaningful vote on the withdrawal agreement. It said that that vote should apply not to a motion, but to a statute, and that we should be able to take a decision before the treaty is ratified, not after, and before implementation starts. I know that Ministers have considered rowing back on that, and I strongly warn them not to do so. They should respect the spirit of our debates and the views of this House.

Several Government amendments relating to the date on which we will leave have undermined that meaningful vote. My amendment 10 seeks to deal with the conflict between the previous amendment 7, which was passed, and the amendments tabled by Sir Oliver Letwin and the Government. Those amendments on the date would bind Parliament’s hands and concentrate powers with Ministers when it comes to considering the final withdrawal agreement and as we come to the supposedly meaningful vote.

In Committee, we debated the fact that it was unwise at this stage in the negotiations to include the date in the Bill, because that could make it difficult to handle late problems in the process or to renegotiate any aspects of the agreement if we get a bad deal. It also restricts Parliament’s ability to scrutinise and call for changes, if necessary, once we see what the Government propose as the final deal. Suppose, for example, the transitional arrangements miss out something that is extremely important for our security, or for a sector of our economy. Parliament should at least have the chance to debate that and decide whether it wants to call on the Government to go back and try to negotiate a further change, or propose adjusting the timings—even for a few months—while the issues are sorted out. The Bill, as it stands, prevents us from doing so, and it could mean that Parliament is simply timed out. It would force us back to the very situation that Parliament rejected when it passed the previous amendment 7. In other words, Parliament would basically have to choose between the Executive’s deal and no deal at all. That is not a meaningful vote.

The amendments tabled by the right hon. Member for West Dorset do not help, because they allow the date to be changed, but only by Ministers—not by Parliament, even if Parliament takes a different view from the Executive. In addition, they allow the date to be changed only if an alternative date is included in the withdrawal agreement, so if Ministers agree an alternative date with the EU, they can use secondary legislation to change the date in our legislation, too. That is not on, because it will effectively give the EU Parliament more of a say than this Parliament over whether the date should be changed. That is hardly taking back control.

If there is no deal at all—I hope that that will not be the case; I think it is inconceivable that no deal will be reached, and I am conscious of the points that hon. Members have made about the difficulties that that situation would create for Northern Ireland—there will be no vote for Parliament. My amendment 10 would address the fact that only Ministers can change the date, as well as the fact that Parliament would have no vote if there were no deal at all.

Photo of Catherine West Catherine West Labour, Hornsey and Wood Green 3:30 pm, 17th January 2018

I thank my right hon. Friend for giving way in this tight debate. The negotiation before Christmas came down, in the end, to the Ireland question. Does she accept that allowing enough flexibility, as many of the amendments do, is crucial to the final, icing-on-the-cake deal?

Photo of Yvette Cooper Yvette Cooper Chair, Home Affairs Committee

My hon. Friend is right. It is immensely important that we get these decisions right. I have proposed, in amendment 10, that the date should be settled in Parliament in the statute that provides for a meaningful vote on the withdrawal agreement. It is the obvious and logical consequence of agreeing to the previous amendment 7, which requires a vote on a statute. Let us set the date for departure in that statute, rather than in this Bill. I propose that when we get to the withdrawal agreement, we confirm the date, because the terms and timing of departure should go hand in hand. In that way, we do not concentrate all the power in Ministers’ hands.

We need to make sure that when Parliament has a meaningful vote, we have proper transparency and a debate on the decision, and that is why new clause 17 is so important. The Government have ruled out membership of the single market and the customs union. Everyone recognises that the single market issues are complex, linked as they are to questions of immigration and how we deal with future rules. That makes it even more important for Parliament and the public to be able to scrutinise the Government’s decisions on those complex issues. To do so, we need to know the facts and the impact on the economy and our constituencies.

On the customs union, the issues are more straightforward, but the need for transparency is the same. Being in the customs union is immensely important not just for Northern Ireland, but for manufacturers across the country, especially across the north and the midlands. The Prime Minister, we understand, has had special meetings with City financiers about what they need from the Brexit deal, but what about Yorkshire manufacturers in my constituency? Where is their chance to have their say on the customs arrangements that they need? Where is the opportunity for us all to see the impact of not being in the customs union, the impact of decisions about the single market, and the impact on jobs in our constituencies before, not after, we vote on the withdrawal agreement? The ramifications of these decisions are immense.

The amendments are about strengthening the power of Parliament, no matter what kind of Brexit we think is best, and no matter what our politics or party membership. The amendments are about the health and resilience of our democracy, and about us all working together to get these crucial decisions right.

Several hon. Members:

rose—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. I think there are still about 10 if not 11 Members seeking to catch my eye. If each Member could speak for three minutes or so, everybody would get in. If that is not possible, so be it, but Members can do the arithmetic for themselves. Perhaps we can start with a very good example from Mr Derek Thomas.

Photo of Derek Thomas Derek Thomas Conservative, St Ives

Thank you, Mr Speaker; I will keep my comments brief. I rise to oppose new clause 2 for the following reasons. By seeking full, comprehensive and sufficiently detailed agreements on several aspects of the future relationship between Britain and the EU, it ties the hand of Government. I am not sure that that is any way to negotiate future trading agreements. Furthermore, the new clause is impractical and inconsistent with article 50, for which the vast majority of this House voted last March.

The EU (Withdrawal) Bill is intended to ensure that EU legislation is transferred into UK law to deliver for the UK a smooth exit from membership of the EU next year, which I am sure we all hope for. Future trade agreements are a separate matter, and they will determine our future trading relationships throughout the world. I commend to the House the “Britain is GREAT” campaign, which is designed to open up a host of trading opportunities once we have left the EU.

Despite the comprehensive list of priorities—a total of 35—on which those who support the new clause want detailed agreements, the issues that concern my constituency are largely ignored. I am not willing to support the new clause, but I call on the Minister to commit, at an early stage, to a strategy that incorporates the economic and social cohesion principles derived from article 174 of the treaty on the functioning of the European Union. That is important for regions across the UK, including the county of Cornwall, so that we can have confidence that future support will be maintained for areas with high levels of deprivation, rural and island areas, areas affected by industrial transition, and regions that suffer from severe and permanent natural or demographic handicaps.

Brexit offers opportunities to further reduce inequalities between communities and regional disparities in development. Cornwall and Scilly has received considerable EU funding, but not every penny has been spent as intended. The region must be given far greater power over its own destiny and prosperity, and that is what the 2015 Cornwall devolution deal was intended to achieve. Work continues on thrashing out the detail so that Cornwall and Scilly has every tool needed to create a vibrant and successful economy, where wealth is shared across our population.

I do not believe that serious thinkers in Cornwall and Scilly believe that structural funding support of the sort that has been enjoyed, such as EU regional development funds and EU structural funds, continuing indefinitely is in our best interest; nor was it anticipated that Cornwall would be in receipt of the money even if the British people had voted in June 2016 to remain in the EU. Cornwall and Scilly and other areas across the UK need investment to create the infrastructure, jobs and skills that will assist long-standing pockets of deprivation, and an environment that offers opportunities and life chances to everyone, whatever their age or ability.

Photo of Anna Soubry Anna Soubry Conservative, Broxtowe

I know my hon. Friend loves his part of our great country, but has he asked businesses throughout Cornwall, if they were given a choice of staying in the single market and the customs union or of leaving one or both, what they would choose? That would be helpful in determining the best sort of Brexit to benefit all his constituents.

Photo of Derek Thomas Derek Thomas Conservative, St Ives

I think I welcome that intervention. I hear what my right hon. Friend says, and it is true that, despite all the money and business support that Cornwall has received, it voted in favour of leaving the EU. What people in my constituency and across Cornwall want is us to get on with the job—to get the Bill through and then set out clearly how we intend to trade in the future.

We are asking for a level playing field, where that is possible. I welcome the creation of the shared prosperity fund, and although I do not support new clause 2, I seek an assurance from the Government that areas such as Cornwall and Scilly will enjoy special recognition, as we do now because of the challenges we face, which include deprivation and severe and permanent natural or demographic handicaps.

Several hon. Members:

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Photo of Ian Murray Ian Murray Labour, Edinburgh South

I will be brief, Mr Speaker. I rise to speak to new clause 17, on which I intend to test the will of the House later today. I will not repeat what Mr Clarke said, but I very much appreciate his support for the new clause, as I do the comments made by Mr Grieve.

I tabled the new clause simply to inject some clarity, transparency and honesty in the debate. We already have a strong baseline of what the single market and the customs union provide the UK, and new clause 17 offers a straightforward way of comparing what we have now and what the Government come back with and put on the table before the House votes on the legislation to invoke our leaving the European Union.

I also tabled the clause to prompt another discussion about the single market and the customs union. I intervened on my hon. Friend Mr Leslie to make the point that all these complicated issues—those relating to the island of Ireland are probably the most complicated—can be resolved by continuing to participate in the single market and the customs union.

My key point, on which I hope Ministers will reflect and which Michel Barnier has already stated clearly, is that the red lines that the Government have set themselves are completely and utterly incompatible with the conclusion they wish to reach. Until they are honest about that with the public and this House, we will be unable to move forward. That is part of the reason why the EU keeps demanding from the UK an explanation of the final destination—what the UK actually wants from the process. The Prime Minister’s Florence and Lancaster House speeches set out criteria that are completely and utterly undeliverable, given the red lines set. To take the customs union and the single market off the table so early as a red line was the wrong decision.

We need the Government to put to both Houses a full and independently assessed analysis comparing the impact on the UK economy of two conclusions to this debate: staying in the single market and customs union and coming out on the basis of the deal the Government propose. The Government will resist the new clause, however, not out of principle, but because they know that any negotiated deal they come back with from the EU will not be as good as the deal we have today, and that will be saying to the public that that deal will make the country poorer. For any Government, that is a dereliction of duty. They should put their money where their mouth is, support my new clause 17 and put in black and white the consequences of this country’s refusing, failing and no longer participating in the single market and customs union.

Photo of Chuka Umunna Chuka Umunna Labour, Streatham

I will be as brief as I can. I rise to speak in support of new clause 6 on the legal standing of article 50. I voted in the last Parliament to invoke article 50 because I believed it was the duty of the House to seek to deliver Brexit in the form in which it was sold to the British people, but it was conditional on it being in that form. I said that if it turned out to be materially different at the end of the process, the people would be entitled to keep an open mind on what should then happen. By that I meant they were entitled to halt the process and revoke the article 50 notification given by the Prime Minister to the President of the European Council, if that was what the people decided to do.

The core purpose of new clause 6 is to clear up this matter. On the issue of revocability—halting the process or extending article 50—Ministers have sought deliberately to pull the wool over the eyes not just of this House but of the people. They have given the misleading impression that legally we are not free to keep an open mind and that we cannot revoke article 50 if we so wish. For example, on 9 October 2017, when my right hon. Friend Mr Bradshaw asked the Prime Minister if it was possible to halt the article 50 process, she implied that it was not and said:

“The position was made clear in a case that went through the Supreme Court in relation to article 50.”—[Official Report, 9 October 2017;
Vol. 629, c. 51.]

But it was not. The case she was referring to was brought by Gina Miller to stop this Government seeking to take back control for Ministers instead of for Parliament, as was intended.

The Prime Minster was pressed again on the same day by my right hon. Friend Mr McFadden and my hon. Friend Mr Leslie and each time gave a similar response. This gave a completely false impression of the reality, because what she said was not factually correct. The Supreme Court did not and has not opined on this issue in the Miller or any other case before it, though the author of article 50, the noble Lord Kerr, has made it clear that it may be revoked.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

It is abundantly clear that the matter has not been determined by the Supreme Court. The Government chose in the Miller case—for understandable reasons—to put forward the proposition that it could not be revoked, and both sides asked the Court to proceed on that assumption. It did not opine on the matter.

Photo of Chuka Umunna Chuka Umunna Labour, Streatham

The right hon. and learned Gentleman is quite right.

The Brexit Minister in the House of Lords, Lord Callanan, repeated this false claim when asked by a Conservative colleague whether he could confirm that the judgement in the Miller case had in ruled in “precise terms” on the revocability of article 50. He replied, “I can confirm that” and went on to say that the European Commission had said that once invoked, article 50 was irrevocable. He was forced 10 days later to return to the other place to come clean on the reality of the legal position, which was of course that the Supreme Court had said no such thing. Indeed, the European Commission is clear that article 50 can legally be revoked, and politically no member state has indicated that it would object to this.

Last week, the Government received legal advice from three Queen’s counsels, Jessica Simor, Marie Demetriou and Tim Ward, all of whom are on the Attorney General’s A panel of counsel and represent the United Kingdom. They have provided the Government with a published legal opinion confirming that article 50 is revocable. On the political side, the President and vice-president of the European Commission and the President of the European Council have made it clear that if this country wishes to change its mind at the end of the process, it will be free to do so. The British people deserve to know that; our constituents deserve to know it. The Government should publish that legal opinion, which is why new clause 6 must be passed.

Photo of Mary Creagh Mary Creagh Chair, Environmental Audit Committee 3:45 pm, 17th January 2018

New clause 12, which stands in my name and those of a number of other Members, seeks to guarantee our management of environmental protection after exit day. The environment has been in the news quite a lot recently. The members of the Cabinet all had reusable coffee cups following their meeting yesterday, although I think we shall need a little bit more from the Environment Agency than bamboo cups if we are to protect our environment after Brexit. I was delighted to receive your letter today, Mr Speaker, saying that the House of Commons Commission and the Administration Committee will be looking into how Parliament can reduce its plastic usage. Last Thursday the Government published their 25 Year Environment Plan. They were very clear about what they wanted to achieve, but there was absolute silence on how that was to be done.

A third of the acquis communautaire which applies in the UK is related to the Department for Environment, Food and Rural Affairs—it has brought us huge environmental improvements—and 80% of our environmental protections originated in the EU. A third of those protections cannot simply be cut and pasted. The aim of new clause 12 is to prevent us from ending up with “zombie legislation”, no longer updated or enforced, and vulnerable to being quietly dropped at the stroke of a Minister’s pen. The Environmental Audit Committee, which I chair, called for a new environmental protection Act more than a year ago, and the new clause does the same today: it calls for legislation setting up a strong environmental protection agency to monitor and enforce standards, replacing the European Commission. The Secretary of State for Environment, Food and Rural Affairs told my Committee in November that such a body would be needed. We await his proposals, but this must be done quickly.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

What my hon. Friend has said is important for another reason. Environmental protection means development, and, as she will know, that means development jobs in towns such as Coventry. There is, for example, the electric car.

Photo of Mary Creagh Mary Creagh Chair, Environmental Audit Committee

Absolutely. I was thrilled to learn that the electric black cab is being made in Coventry. It is great that Carbodies has a future.

It is important to drive that great innovation, that green growth, across the country. Let us take the example of waste. Twenty years ago we sent almost half our household waste to landfill; now we recycle almost half of it because of the EU’s waste framework directive. We will have no recycling targets after 2020 unless we adopt the EU’s target of 60% by 2030. We need that new environmental protection Act to set out waste targets: that will drive the innovation that we need in reprocessing.

We need reprocessing capacity urgently. As a result of the Chinese ban on the import of contaminated UK waste, 3 million tonnes of paper and 280,000 tonnes of plastic will no longer go to China, and we will have to do something with it on this island. A hard Brexit means that we could end paying tariffs on our waste exports, so exporting our waste to faraway countries will no longer be an option. The Environmental Services Association told my Committee that the industry had invested £5 billion in new infrastructure in the past five years, and could do so again, given the right policy environment. At present, however, there is the risk of a vacuum.

We hear the same story when it comes to cleaning up our beaches. The bathing water directive ended the discharge of untreated sewage into the sea and drove investment in the replacement of lead pipes. The European Investment Bank is the largest debt investor in the UK water industry, holding 13% of gross outstanding debt. There is a risk that, if we cannot gain access to EIB capital, there could be higher borrowing costs for water companies and higher water bills for consumers.

As for air quality, the EU has set out the targets that we should meet in the ambient air quality directive. We are currently missing those targets. I have been through the 58 impact assessments, and air quality does not feature in any of them, although it is one of the most pressing market failures that we face. There is no air quality industry, which is why it is neglected. We have had our final written warning from the Commission. The danger is that when we leave the EU we will not set ourselves stringent standards. There is no agency to set those standards, no agency to monitor them, and no agency to enforce them. The Prime Minister launched the environmental plan last week. She says she wants to phase out unnecessary plastics by 2042. I can tell her now that I am not waiting until I am 75 to clear up our environment. This House needs a vote on a strong environmental protection Act, and a strong environmental protection agency to make sure we pass on a decent environment to our children and grandchildren.

Photo of Caroline Lucas Caroline Lucas Co-Leader of the Green Party

Time is short so I shall make just two brief comments.

First, I support amendment 59 and thank the SNP on taking the initiative on pulling that together. Peter Grant made a compelling speech on the importance of remaining inside the single market and customs union, and I join him in appealing to Labour Front Benchers even at this eleventh hour to support it. As he and many other Members have said today, the Government have no mandate for the kind of extreme Brexit they are pursuing. The irony in the Labour Front-Bench position is that the NHS crisis or the inequality crisis or the housing crisis are all far harder to tackle if the UK is outside the single market and customs union.

My second point is to commend Mary Creagh on her speech on her new clause 12. I agree entirely with what she said. She says the environmental plan lacks a “how”. That is true, but, crucially, it also lacks a “when,” and a key question at the heart of my new clause 18 is about timing. The Government are in theory at least committed to bring forward this new domestic environmental regulator, which is supposed to set out the way in which environmental legislation will be enforced once Brexit happens, if it happens. I am concerned that there is nothing to guarantee that that new body will be in place by Brexit day.

We have had positive written statements. For example, the Secretary of State for Environment, Food and Rural Affairs explained in a written statement last week that the Government’s 25-year environmental plan will be underpinned by what he says is

“a comprehensive set of environmental principles” to “ensure strong governance”. He also talks about consulting on setting up

“a world-leading environmental watchdog, an independent, statutory body, to hold Government to account for upholding environmental standards.”—[Official Report, 11 January 2018;
Vol. 634, c. 12WS.]

That is all very well, but what is not addressed is the question of timing, which is why my new clause 18 is so important.

We need to make sure that there is no so-called governance gap, and there is still a very real risk that, after Brexit day but before this new body comes into place, we will have a governance gap where environmental legislation that might well have been brought across from the EU to the UK still will not be enforceable. We will still not have that replacement for the Commission and the ECJ. We will end up with what has been called zombie legislation.

This new clause 18 is vital; we must not be left with that legal gap. We need legal certainty. That is what this provision will provide, and I urge the Government to think again about supporting it.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I shall speak to new clause 20 in my name and those of other Members, and I also want to express my support for new clauses 6, 12, 11, 1 and the other Opposition amendments and many of the other excellent proposals put forward today. I wish to make it clear, too, that although we debated amendment 5 yesterday, I do not seek to press it to a separate Division today. However, I hope that, given the debates we have had about devolution, Members in the other place look very carefully at the issues in question and whether the Government come forward with amendments to address the concerns about clause 11 and other parts of the Bill.

I am proud to have tabled new clause 20 along with other hon. Members because I am a Labour and Co-operative MP, and part of the co-operative ideal is that democracy, decision making and process are not one-off events, and nor do they only involve one group of people. As a Co-operative MP, I believe in the involvement of Members, of management, of consumers and of others who have a stake in the running of a business, enterprise or organisation, and I believe we should be looking at this Brexit process in a much more co-operative way. Indeed, that would address many of the concerns about the way it is going forward.

We are at present heading forward with a monolithic approach by the Government—a reckless hard Brexit approach that does not take into account the many other ways. The point has been clearly made that the public can change their mind and look at different options. There are many options that we could take in this process, but we are being handed one particular route forward and there is an attempt to shut down the debate on any other options that might be out there.

Thankfully, other organisations have rejected this and have been using the excellent procedure of the citizens jury to try to understand what the public think about the detail—not just the question of leave or remain—and about crucial questions such as whether we should remain in the single market or the customs union. My new clause 20 seeks to institute a citizens jury on the Brexit negotiations. It would involve a selection of citizens from across the country who are informed about the facts that we so often do not have before us. It would be able to deliberate on and discuss them in a free and fair way, and it would incorporate people who voted leave and those who voted remain, as well as people with all the shades of opinion in between.

Photo of Liz Kendall Liz Kendall Labour, Leicester West

I have been a long-standing champion of citizens juries. In fact, I wrote the first book on the citizens juries in 1992. They give people real information, choices and trade-offs, and it has been proven that people can take difficult decisions if they have that open and honest information. I warmly support my hon. Friend’s new clause.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I absolutely agree with my hon. Friend. I was not aware of her historical involvement in this matter. That is absolutely fantastic. I know that my hon. Friends the Members for Stretford and Urmston (Kate Green), for Walthamstow (Stella Creasy) and for Cambridge (Daniel Zeichner) and many others have been involved in this process as well.

Before I conclude, I want to draw attention to a recent example. The citizens assembly on Brexit was organised recently by a number of universities and civil society organisations, including the constitution unit at University College London, the centre for the study of democracy at the University of Westminster, the University of Southampton, Involve and the Electoral Reform Society. That citizens jury came up with some very interesting results. It concluded that our priorities for trade policy should be minimising harm to the economy, protecting the NHS and public services, maintaining living standards, taking account of the impacts on all parts of the UK, protecting workers’ rights and avoiding a hard border with Ireland.

Those are all sensible suggestions, and that is not surprising because they come from the British people. They do not represent the one monolithic view of the way forward that the Government are presenting. The public are presenting a sensible approach to Brexit, and that is what we need more than ever at this time. We do not need to hear wild claims about what the public think. It is a shame that we sometimes do not get these debates in this House, but I am thankful that Members on both sides have been brave enough to stand up in this debate and put forward their views. We need to listen to the public on this as well.

Several hon. Members:

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Photo of Karin Smyth Karin Smyth Labour, Bristol South

I rise to speak as the vice-chair of the British-Irish Parliamentary Assembly and the all-party parliamentary group on Ireland and the Irish in Britain. Despite the border being one of the principal issues in the phase 1 agreement, there has been very little debate or understanding in this House about the context of the border issue with Ireland, and that is a huge problem. Phase 1 is hugely welcome. Our Prime Minister has signed up to it on behalf of the United Kingdom, and there is to be no ambiguity or rowing back from it.

On day five of these debates, Lady Hermon said that she remembered exactly where she was when the Good Friday-Belfast agreement was announced. That is true for many of us. I am one of the millions of British children of Irish immigrants who grew up in the 1970s and 1980s. It was difficult. The violence and murder on the streets of Northern Ireland and Britain hung over our communities and fuelled anti-Irish sentiment here. That changed in the 1990s.

The Good Friday agreement is an exemplar across the world of dealing with long-standing conflict. The UK and Ireland are its guarantors, and our joint membership of the EU, our shared regulations and our customs union are the foundation on which it is based. The Good Friday-Belfast agreement was not just about Northern Ireland and it was not just about politics. It was about the relationship between all the people on these islands. We have more in common: until 100 years ago, we were one country. My grandparents were born in Mayo and Cavan under the auspices of this Parliament, just like me when I was born in London. Our legal and political systems are akin, which is why the Republic of Ireland is our greatest ally in the EU. For years, hundreds of weekly meetings have taken place between our officials and our politicians as part of the EU. These will cease, and the Good Friday agreement now needs to come into its own and deepen the north-south and east-west strands. The debate about the border is not about wandering cows and cameras. The absence of a border is about recognising our commonality and our mutual interest.

On the British-Irish Parliamentary Assembly, we are concerned that there is no longer the necessary knowledge and experience in this Chamber of the British-Irish relationship, and we have been considering how to support hon. Members to develop that understanding and to undertake greater cross-party and jurisdictional work. I hope that the House of Lords will have more debates on this issue than we have done.

In my early days as a Member, Mr Speaker, we had the privilege of hearing the noble Lord Bew speak in your rooms about Charles Stewart Parnell and the great arguments that raged in this place throughout the 19th century. We could perhaps arrange for more speakers from all communities, and we could encourage the Select Committees and the all-party parliamentary groups to share understanding across these islands and to develop those deep relationships. Most importantly, we need to build on what we have and not go back. Voices on both sides of the House are crucial to that.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West 4:00 pm, 17th January 2018

This Bill is essentially about cutting and pasting the laws, protections and rights of the EU into British law, and the fundamental problems are that clause 9 gives sweeping powers to Ministers to strike out those laws, protections and rights and, quite simply, that we do not have the institutions to enforce those rights. In essence, new clauses 10 and 14 would ensure institutions are in place to enforce those individual, consumer, environmental and workers’ rights and protections.

The European Food Safety Authority, which responded to the horsemeat scandal, or similar agencies should be in place to prevent genetically modified, hormone-impregnated or antibiotic-impregnated meat, and so on, from coming from America. The European Chemicals Agency is charged with protecting us through REACH—the regulation, evaluation, authorisation and restriction of chemicals regulation—which prevents, for example, asbestos from being sold here when they can be sold in America. The European Environment Agency underpins our air quality and is taking the British Government to court. It has delivered blue flag beaches instead of low-tar beaches, and it is involved in ensuring biodiversity, etc. Euratom regulates nuclear power and research across Europe, including Britain. The European Medicines Agency ensures Britain can develop and sell drugs across Europe.

It is critical that institutions are in place to continue those processes, yet the White Paper said, for example, that protected habitats will continue without enforcement agencies after Brexit. In other words, we do not know there will be a guarantee that institutions will be in place to enforce the rights and protections we currently enjoy, which is why new clauses 10 and 14 are important.

We also know that Britain does not have the ready capacity to enforce rights and protections in the way those big institutions do. Enforcement would basically mean fining ourselves for not fulfilling air quality standards, which is meaningless.

New clause 14 essentially says that those rights and protections should also be instilled in new trade agreements, which the Government are hurtling ahead in agreeing in secret. Such rights and protections should therefore be frontloaded, so that people can be secure in the knowledge that Ministers will not sign off agreements that are perhaps in breach of domestic law and that will then be imposed by arbitration courts, whether through investor-state dispute settlements or through the investment court system.

Photo of Geraint Davies Geraint Davies Labour/Co-operative, Swansea West

I am. I urge people to support new clause 14.

Photo of Tommy Sheppard Tommy Sheppard Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Scotland), Shadow SNP Spokesperson (House of Lords)

Given the shortage of time, I will confine my remarks to amendment 59.

I find it almost unbelievable that, 18 months after the referendum and six months after the Government introduced this Bill, they still have not provided or commissioned any proper economic analysis of what Brexit will mean and of the various options we have. In that information vacuum, it has fallen to others to try to fill the gap. A recent report from the Mayor of London concluded that 500,000 jobs are at risk as £50 billion will be taken out of the economy.

The Fraser of Allander Institute in Scotland, which is no friend of my party or of the Scottish Government, has concluded that Brexit puts 80,000 jobs in Scotland under threat. Just this week, a new analysis from the Scottish Government concluded that each person in Scotland could lose £2,600 if we leave the single market.

If the Government disagree with those analyses, I have to wonder why they do not publish their own. I understand that the Government are, of course, divided at the highest level—God knows they need to find agreement among themselves before they can get agreement with other countries—but that cannot be the whole explanation.

I believe the reason we have not had this analysis from the Government is that they know anything they publish will not support and provide evidence for the path they have chosen. Given that degree of denial and political myopia, it falls to this Parliament to try to save this Government from themselves. We can do that by supporting amendment 59, because the truth is that there are no good options here, only less bad ones. Clearly, the least bad option we can do is remain in the customs union and single market to protect our economy. The time has come to call a halt on what is happening and say, “This is the direction we must go in.”

As Tom Brake mentioned, this amendment has the backing of four parties. It is almost a united Opposition amendment, but there is an absentee friend—the Labour party. I say to Labour colleagues, even at this eleventh hour, not to chastise them but to welcome them in this campaign, “Don’t just participate. Come and lead the campaign against this Government. If you do not, you compromise the future.” In a few years’ time, when the consequences are clear, prices are going up and jobs are disappearing, the Leader of the Opposition will try to accuse the Government and they will look back and say, “You didn’t stop it at the time.” So I ask Labour colleagues to come with us and back amendment 59, and let us try to save this Government from themselves.

Several hon. Members:

rose—

Photo of Matt Western Matt Western Labour, Warwick and Leamington

I wish to speak to new clause 17. We have learned several things in recent weeks. First, that the red lines set by the Prime Minister will handicap us in our negotiations; secondly, that those same red lines have removed important options from the table; and, thirdly, that the Government have not felt it necessary to do comprehensive qualitative and quantitative assessments on the implications of leaving. That is extraordinary. No large business, certainly no multinational business, would leave a market and abandon its investment in that market without fully evaluating the commercial and reputational consequences, but for this Government that lack of process is somehow acceptable. What new clause 17 offers, correctly, is a framework to properly evaluate the deal and arrangements proposed by the Government, so ensuring both transparency and a full public understanding, by area, of the consequences of leaving. That is why I support new clause 17.

Photo of Ruth Cadbury Ruth Cadbury Labour, Brentford and Isleworth

I would rather be speaking on whether or not we should be leaving the EU. The more I hear, the more I fear the UK is heading over a cliff and on to rocks far below. Like everyone here, however, I am speaking on the specifics of how the UK withdraws from the EU, if withdrawal is to go ahead. I support new clauses 12 and 21, and others that seek to preserve our environmental protections and legislation. I particularly support new clause 12, which stands in the name of my hon. Friend Mary Creagh and would require the Government to report on the “loss of environmental protection” as a result of leaving the EU and to introduce a new environmental protection Bill.

The Government have kept trying to reassure Parliament and the British people that Brexit will mean that EU law will be seamlessly merged in UK law and that we do not need to worry. Not only do I not believe that to be true, but I am concerned about the Government’s lack of urgency on taking sufficient legislative action before March 2019. We are still awaiting the long-promised policy statement on environmental principles which will underpin future environmental policy making. There will then be wide consultation, but even that will not be on the actual policies; it will just

“explore the scope and content of a new statement on environmental principles.”

That suggests there is a lot of law up for grabs and no sense of urgency.

On air quality, which matters greatly to my constituents, the Government are dragging their feet. The London Mayor, Hounslow Council and many other councils are using their limited powers to improve air quality, but there is only so much they can do. The Mayor has made it very clear that the UK will not bring pollution levels into line with existing EU air quality laws without serious and urgent action by the Government. But instead of this, the Government are using taxpayers’ money to defend themselves against yet another legal challenge by ClientEarth over illegal levels of air pollution in the UK and they have launched an environment plan that is weak to say the least. Given this lack of proven commitment to bringing the UK into compliance with even one aspect of existing EU environment standards, I have little faith that Brexit will mean anything other than an undermining of many protections and improvements that the EU has brought us to date. That is why I urge this House to support many of these amendments, particularly new clauses 12 and 21, and any others that protect our environmental rights and protections, which I, my constituents and many of us hold so dear.

Photo of Chris Stephens Chris Stephens Shadow SNP Spokesperson (Trade Unions and Workers' Rights)

I hope the Government will consider workplace protections in the Bill, because many of us do not trust the Government in that regard.

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

This has been a full and vibrant debate, with many excellent contributions and memorable moments, to which I shall try to refer at the end, if there proves to be time.

Two Members made particular requests. Caroline Lucas, who is not in her place, asked about the timing and when we would take forward our policy. I will undertake to discuss that with my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs later this week.

My hon. Friend Derek Thomas mentioned the shared prosperity fund. I assure him that we discussed it when I visited Cornwall and that the Government are well aware of the need in Cornwall and other areas. We will drive forward the design and implementation of that fund.

It might help the House to know that I intend to speak first to the Government amendments and, in a couple of cases, the related Opposition amendments. I will then ensure that I have dealt with the Belfast agreement, as it is so important, before working through some of the other amendments, if time allows.

Government amendment 33 builds on the exit-day amendments tabled by my right hon. Friend Sir Oliver Letwin, to whom we are grateful. This further amendment to schedule 7 makes the power to set exit day subject to the affirmative procedure, thereby fulfilling a commitment that I gave at the Dispatch Box during day eight in Committee. As the Prime Minister and the Secretary of State have made clear, we have always been committed to the proper parliamentary scrutiny of our exit from the EU. In line with our promise that Parliament will be given time to debate and scrutinise the legislation that implements the final agreement that we reach with the EU, it is appropriate that Parliament scrutinises any potential change to exit day. I hope the whole House will support the amendment.

Labour’s amendment 1 would allow the Government to amend the definition of “exit day” if it were not in accordance with any transitional arrangements agreed under article 50. I understand the intention behind the amendment, but I remind the House that, after the improvements to which I have referred, the Bill now provides for changes to the exit day, as set out in article 50, to ensure that the domestic situation reflects the international position. Furthermore, Government amendment 33 will ensure that Parliament has appropriate scrutiny of any change to the date of exit by making it subject to the affirmative procedure.

Amendment 10, which was tabled by Yvette Cooper, would require exit day to be specified in a separate Bill on the terms of withdrawal. It replicates an amendment that was debated in Committee in November, since when the Bill has benefited from the amendments I mentioned and, in particular, the changes suggested by my right hon. Friend the Member for West Dorset. Exit day will be set out in law as 11 pm on 29 March 2019, but we will have the technical ability to amend it if the UK, the EU and, indeed—to address the right hon. Lady’s points—the European Council, decide unanimously to change the date. The right hon. Lady referred particularly to the European Parliament, but I have the text of article 50 with me and it is clear that any change would require the

“European Council, in agreement with the Member State concerned” to unanimously decide to extend the period, so I do not accept her argument about the European Parliament having more say than this Parliament.

We have always been committed to the proper parliamentary scrutiny of our exit from the EU, which is why, in line with our promise that Parliament will be given time to debate and agree the legislation that implements the final agreement that we strike with the EU, it is appropriate for Parliament to scrutinise any changes to exit day through the affirmative procedure. In the unlikely event that the power to change exit day is used, it will simply be a technical change to ensure that our domestic legislation reflects the reality of international law. It is certainly not necessary, and would be disproportionate, to make such a change via primary legislation.

The House agreed in Committee to Government amendments regarding explanatory statements and to the Procedure Committee’s amendments to establish a sifting committee. We have tabled two technical amendments, Government amendments 35 and 36, to ensure that these amendments best function alongside each other. Government amendments 35 and 36 will ensure that the requirement for a Minister of the Crown to make an explanatory statement applies before a draft instrument is laid before the House for the purposes of sifting, as well as in other cases. They will also ensure that, where an explanatory statement has been made before the House of Commons for the purposes of sifting, there is no need to make a further statement after sifting when an equivalent instrument is laid again before both Houses of Parliament after being made or as a draft affirmative instrument. That will ensure that the committee has all the necessary information at its disposal and will avoid confusing double statements when nothing has changed.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset 4:15 pm, 17th January 2018

After the sifting committee has received an explanatory statement and before it makes a sift, will the committee also have access to Ministers to question them if it cannot understand what the affirmative or negative instrument is about?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

I very much hope that the committee will be able to understand things through our meeting the requirements for explanatory memorandums that we have set out in the Bill, but I would of course expect Ministers to be helpful to the committee. We need to get statutory instruments through smoothly, and we would want to support the committee in reaching its decisions.

I will now jump ahead in my remarks to deal with new clause 3 and the Belfast agreement. New clause 3, which was tabled by Mr Leslie, is important, and I reiterate that the Government remain steadfast in their commitments to the Belfast agreement and its associated obligations under international law.

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

Will the hon. Lady allow me to make my points? I think I am going to be able to satisfy her, but I will gladly give way after I have reached the particular point in which I think she will be interested.

The agreement between the UK and the EU, as set out in the joint report, must be negotiated and taken forward through the article 50 negotiations, not in this Bill. The EU set out before Christmas that negotiators now need to work on translating the commitments in the joint report into the withdrawal agreement or the framework for the future relationship. That is the task we will be engaged in over the coming months, so it would be wrong to cut across the negotiations by separately seeking to codify commitments into this Bill.

We have already committed to protecting the Belfast agreement in full through the withdrawal negotiations. The joint report sets out the Government’s and the EU’s commitment to respect the provisions in the Belfast agreement and the principle of consent. More broadly, we have said that we will introduce the withdrawal agreement and implementation Bill to implement what we agree with the EU as a whole. The joint report is also clear on the Government’s commitment to protecting north-south co-operation and to our guarantee of avoiding a hard border. We have been clear that we will protect the UK internal market in all circumstances and ensure the same unfettered access for Northern Ireland’s business to the entire United Kingdom internal market.

The detail of the withdrawal agreement and implementation Bill will and must reflect the terms of the withdrawal agreement, so I reassure the House that we will include an appropriate provision in the withdrawal agreement and implementation Bill upholding the agreement we reach, including the protection of the Belfast agreement, to which we committed in the joint report.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am grateful to the Minister for giving way. I am delighted that he has confirmed that there will be no hard border and no border down the Irish sea. What I am concerned about are the pledges about the Belfast agreement. My focus has always been on the incorporation of the fundamental principles of the Belfast agreement. When I spoke to my new clause on the fifth day in Committee, I withdrew it on the understanding that the principles of non-discrimination, equality and respect before the law would be incorporated by the Government in forthcoming legislation. Will the Minister confirm that commitment?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

I remember our previous conversation about the general principles, which have been widely discussed during the passage of this Bill. As I said, we are fully committed to the Belfast agreement, and the appropriate commitments will be put into the withdrawal agreement and implementation Bill when it comes forward, so I hope she will allow me to move on at this point. Occasionally, a speech is made in this House that will never be forgotten, and one such speech was hers in Committee. I well remember the need as a young Royal Air Force officer to check under my car every time before getting in. Although I did not share in the troubles as she did, the echoes were felt where I trained in the Royal Air Force, so I assure her that I want to ensure that, by the end of the process, she is satisfied that we have upheld the Belfast agreement. [Interruption.] Did I hear a colleague ask to intervene? No.

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

Well, would my hon. Friend give way? [Laughter.]

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

Voices of inspiration, I trust.

My hon. Friend mentioned the withdrawal Bill several times. Am I right—to be absolutely clear—that the withdrawal Bill will come forward and be considered, and probably approved, by this House before any withdrawal agreement is ratified, that we will not be presented with a Bill to implement an agreement that is already binding on the United Kingdom, but that actually the Government will not ratify any agreements until the House of Commons has first given its support and approval?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

The situation is set out in detail in the written ministerial statement that we laid. Both Houses will have meaningful votes on whether to accept the agreement. It is my expectation that we would not ratify before that primary legislation has gone through.

New clause 1 was tabled by the Labour Front-Bench team. It seeks to place limitations on the use of existing and future powers to amend and modify retained EU law. It is absolutely right and necessary for existing domestic powers granted by Parliament in other Acts and any future delegated powers created after exit day to be able to operate effectively and without inappropriate fetter within UK domestic law after our departure from the EU. This includes parts of our existing domestic law which will become retained EU law after exit day, as well as retained direct EU legislation which will be converted into our domestic statute book.

The Bill’s current approach to existing and future delegated powers aims to ensure the successful operation of retained EU law within our domestic statute book beyond the time limits for the Bill’s more limited specific powers. Adopting the new clause, on the other hand, would undermine the position of certainty and have several detrimental effects that would risk creating significant confusion in the UK statute book. First, limiting the modification of retained EU law by existing and future delegated powers only to when this is necessary

“to maintain or enhance rights and protections” could have uncertain consequences. A test of necessity would impose a high burden that may prevent powers from being used in the most appropriate and relevant way if the regulations they create are not deemed truly necessary for the protection of rights. That could mean that existing and future delegated powers would be unable to amend or modify irrelevant or unsuitable parts of the statute book, leading to ossification of parts of retained EU law within UK domestic law and creating confusion and uncertainty.

Secondly, a restriction of that nature inevitably will increase the possibility of legal challenge against any use of these delegated powers. That would create needless uncertainty for businesses and individuals and risk holes emerging within the domestic statute book. Finally, the measure would also impose significant consultation requirements on the exercise of the delegated powers, the use of which is running against the clock. I understand and support the intention to ensure that all relevant stakeholders, as well as the general public, are aware of the situation and can engage as new legislation is developed. However, the blanket approach suggested under the new clause would be excessively and needlessly onerous. It would risk delays to the implementation of important changes.

In using both existing delegated powers and those created in the future, the Government will, of course, remain bound by the rules and procedures laid out in the parent Act, as well as the accepted statutory instrument processes. I will take this moment to say that I am proud of what we have done to clause 7 to make sure that we have contained the list of deficiencies while making sure that it is amendable through the affirmative procedure.

Turning to new clause 22, I think that I satisfied my hon. Friend Robert Neill earlier in the debate, but he is not in the Chamber so, if the House will allow me, I will move on to new clauses 14 and 15—

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

May I take the Minister back to clause 7 and thank him very much for the approach that he took in the negotiations?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

I am extremely grateful to my right hon. and learned Friend, and pay tribute to him. Although I have occasionally disagreed with him, he has, of course, made a historic contribution to the passage of the Bill. I am very grateful for the way in which he has helped us to improve the legislation.

Labour’s amendment 2 would restrict the scope of the clause 7 power. Labour appears to accept the principle that the power is essential if the UK is to exit the EU with certainty, continuity, control and a working statute book, but restricting the power in the way proposed in amendment 2 would risk compromising our ability to ensure that that statute book continues to function, thereby leaving gaps in our law, and creating uncertainty and confusion for businesses and individuals.

As we have explained previously, making the list of deficiencies in clause 7(2) exhaustive and immutable would risk omitting important deficiencies, preventing us from fully correcting the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation: technical detail, readability, incompleteness and, crucially, the management of time. We cannot risk undermining laws on which businesses and individuals—often unknowingly—rely every day.

As my right hon. Friend the Chancellor of the Duchy of Lancaster set out yesterday, the word “appropriate” was chosen carefully to ensure that the Government have the discretion called for by this unique situation. The constraints that a test of necessity would impose would prevent the Government and the devolved Administrations from making the best corrections to ensure that the statute book continues to function properly. A provision of necessity would risk limiting the Government and the devolved Administrations to only the most minimal changes, regardless of whether that would leave the law deficient, create absurd outcomes, or change the outcomes that the legislation was intended to deliver. I cannot believe that any Member would want to risk leaving the statute book in such a state. I am very conscious that we are now in a position whereby either these instruments will be brought forward under the affirmative procedure or, if they are brought forward under the negative procedure, the sifting committee will have the opportunity to push us towards that affirmative procedure.

Amendment 2 and new clause 15 seek to prevent regression in the protection of rights and equalities as we leave the EU, and new clause 14 seeks to do similarly by maintaining equivalence with the EU. The UK already has strong protections for equalities and human rights as part of our domestic provisions, independent of our membership of the EU. Some of those predate or go beyond EU requirements. The Government are committed to protecting our equalities legislation as we leave the EU. As we set out in the paper that we published on equalities legislation, limited technical amendments will be needed to ensure that all relevant legislation continues to operate as intended by Parliament after exit.

Photo of Chris Stephens Chris Stephens Shadow SNP Spokesperson (Trade Unions and Workers' Rights)

Will the Minister confirm that the Government intend to keep in place the equal treatment directive, which has helped women to gain equal pay claims?

Photo of Steven Baker Steven Baker The Parliamentary Under-Secretary of State for Exiting the European Union

My first point is that that will be incorporated into our legislation. The purpose of the Bill is to ensure that we carry EU legislation into UK law. Secondly, we can only correct deficiencies that arise as a result of our withdrawal, and the hon. Gentleman will be familiar by now with the provisions of clause 7 and associated schedule 2.

To increase transparency, the Government amendments accepted by the House on 13 December will require a Minister to make a statement relating to equalities legislation and duties before laying every SI made under the principal powers in the Bill, as sought by Bambos Charalambous. It is not for this Bill to require similar statements in other EU exit legislation. Indeed, this Bill would not be able to affect most of this legislation, including the Sanctions and Anti-Money Laundering Bill and the Nuclear Safeguards Bill, which will have been introduced to the House before this Bill’s Royal Assent. However, as my hon. Friend Dominic Raab promised in Committee, we will make equalities-related statements alongside other EU exit-related legislation, which I hope will satisfy the House.

Transparency will ensure that the House and the sifting committee established by the amendments tabled my hon. Friend Mr Walker have all the information necessary to make informed and reasonable judgments in the scrutiny of the SIs that we will be making under the Bill. I hope that Labour Front Benchers will be persuaded not to press their amendments.

I turn briefly to new clause 11, which was tabled by Tom Brake. His contribution and the presence of Chuka Umunna in the Chamber reminded me of a rather fetching photograph of the hon. Member for Streatham posing with a remain campaign poster pointing out that the leave campaign had said that we would leave the single market. If any Member wishes to see that, I might tweet it later.

It would be remiss of me if I did not thank all those involved with the passage of the Bill: all right hon. and hon. Members who took time to participate; all the Clerks in the Public Bill Office who have provided invaluable support to Members of the House; and the world-class officials in DExEU and across Government who have ensured the Bill’s smooth passage.

Debate interrupted (Programme Order, 16 January).

The Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

The House divided:

Ayes 305, Noes 318.

Division number 96

See full list of votes (From The Public Whip)

Aye

No

Question accordingly negatived.

The Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 6