European Union (Withdrawal) Bill

Dominic Grieve Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Leslie]

It is touching that the right hon. Gentleman takes those assurances from Ministers at face value, but the Ministers may not be here for very much longer. Who knows? If we are going to make policy changes, that should be done in a Bill that comes before Parliament, or in a statutory instrument subject to affirmative resolution.

I now invite Members to pick up their copies of the Bill, because I want to deal with a couple of provisions in clause 7 which I think contradict the understanding of the right hon. Member for Wokingham (John Redwood) of the scope of the order-making powers that are being taken. It is, in fact, fairly wide. Clause 7(4) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament.”

In other words, a provision in a statutory instrument could have the same effect as one in primary legislation.

[Mr Dominic Grieve (Beaconsfield) (Con)]

When statutes are being considered and Bills are being drafted, there does on occasion come a point at which we must accept that assurances given, for example, at the Dispatch Box will have to complement the inevitable small grey areas. However, that should not prevent us as a Parliament from scrutinising legislation and insisting that, so far as possible, it is drafted in conformity with the purpose for which the Government say that they intend to use it.

[Mr Leslie]

That is why Members often say in the House, “Let us place it on the face of the Bill”, which means “Let us put in writing, in black and white, something that can then be held up in a court of law”, rather than a mere verbal promise from a Minister who, as I have said, could be here today and gone tomorrow. These things matter, and if we are to do our job properly we need to get our statute right.

It is not an exaggeration that clause 7(4) represents a massive potential transfer of legislative competence from Parliament to Government. It is a sweeping power that would make Henry VIII blush if he were to see it today. My amendment 57 would delete the sweeping nature of clause 7(4), because Ministers have not ensured that their powers are as limited as possible; on the contrary, they have ensured that they are as exceptionally wide as possible.

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[Mr Grieve]

Does the hon. Gentleman agree that those who draft legislation go off to Government Departments, show the draft and ask whether that covers all the things that need to be covered, and are then inevitably told that the Department is worried that something has not been covered? Perhaps this should be an encouragement to those on the Treasury Bench to go away and think again about whether the list they have produced is not in reality exhaustive. If it is not, perhaps they would like to identify during today’s debate where they think there might be these extra powers that take them beyond the limits they have listed.

[Mr Leslie]

The right hon. and learned Gentleman and any other Member who has had the privilege of serving as a Minister will know exactly what civil servants will advise, which is, “Well, you don’t know the exact circumstances, so seek as wide a power as you can possibly get away with through Parliament, if it will turn a blind eye to it. We can deal with the consequences thereafter.”

Unfortunately for them, Ministers will not be able to get away with that on this occasion, because we have spotted this land grab attempt. It is not appropriate; if they feel that there should be exceptions or that certain circumstances should be accounted for, those must be set out in the Bill, not just left in these current loose terms.

Current Ministers might feel that they are responsible stewards of Government, but I invite hon. Members to imagine circumstances in which we end up with a malign Government of some sort, shape or variety, such as some sort of extreme Administration—who knows what might happen in years to come? These Henry VIII powers are extremely sweeping. They will be available to Ministers in years to come and could leave the door open to some quite arbitrary near-autocratic actions of a future Government.

For example, if a future Government sought to lift the 48-hour working week provisions that EU law currently gives to employees in this country, Ministers would by order potentially have the scope to do that under the powers in clauses 7 and 9. If Ministers wanted to require the banking sector to have more capital requirements under these provisions, they would be able to simply make those orders. If Ministers wanted some sort of aggressive or inappropriate state intervention to distort competition, favouring one producer over others, they would be able to do that through the provisions on these order-making powers.

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[John Redwood]

I am glad we agree about that. I am trying to make a helpful suggestion for the future on this issue and a wider issue to which we need to return at some point. We need a system that establishes parliamentary control—as I have explained, all the methods we are discussing today are parliamentary control of one form or another—but we may need to think about how we improve processes for the future when that control is a statutory instrument.

[Mr Grieve]

My right hon. Friend is making some important points. If I may say, I have signed up to the amendments tabled by the Procedure Committee because they are a reasonable compromise, but they are most deficient in the absence of a revision mechanism to ask a Minister to reconsider. My right hon. Friend may agree that, even at this stage, those on the Treasury Bench could go away, reconsider the issue and bring a further amendment forward on Report to deal with it.

[John Redwood]

That may be hanging a bit too much on this piece of legislation. I think this is a wider issue, which Parliament may need to consider, so I was not going that far in my recommendation. However, Ministers would be well advised, if by any chance they did make a mistake in a draft instrument, not to do what the previous Government did and just drive it through, but to accept that they needed to withdraw it and to come back with a corrected version, which would make for better order.

The Bill as drafted, with the amendments to provide a process to make the task of parliamentary scrutiny manageable, is a perfectly sensible package, and I look forward to hearing sensible promises from Ministers on the Front Bench, who I am sure will want to exercise these powers diligently and democratically.

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In conclusion, this is simply about Parliament standing up for itself and ensuring that it does its job: scrutinising the Executive and ensuring that when we give them powers—of course, we do need to do so in the proper circumstances—we ensure that we put the right safeguards in place, the right checks and balances, as we have an historic obligation to do. It simply means that we do not believe that this should be done through a concentration of powers, and we think that these powers should be used only when they are needed.

[Mr Grieve]

It is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper). I draw the Committee’s attention to my new clause 82 and amendments 15, 1, 388, 5, 2, 389, 16, 13, 3, 4 and 12. I apologise to the Committee for so burdening the amendment paper this afternoon, but that simply reflects the importance of clause 7 and the fact that, while there are many important aspects to the Bill, clause 7 and the powers that the Government intend to take in order to deal with deficiencies arising from the UK’s withdrawal are so controversial.

I remember a long time ago, when I was newly elected to this place, listening to a debate in which an Opposition Back Bencher, also newly elected, asked why we have Second Reading debates at all, because, in view of the size of the Government majority, they were bound to be a foregone conclusion. She suggested, as I recollect, that in the circumstances Second Reading should be merely formal and that we should move straight on to the Committee stage. The issue before us today touches directly on what was said then, because it is not only a question of parliamentary sovereignty that is at stake, and the extent to which we want to hand over power to the Executive; it is also a question of whether we want to maintain the rule of law by good governance. This House, not without good reason, has over time evolved processes and procedures that present the Government with hurdles when it comes to the enactment of primary legislation. We take Bills through Second Reading, Committee, Report and Third Reading precisely because we, and our forebears in this place, have come to understand that that is the way, by a process of debate through which we moderate each other’s ideas, we are likely to achieve the most sensible outcome. Indeed, we have been doing that consistently. I praise the Government for the time they have given us to do precisely that on the Bill.

However, that is the very reason why we should be so cautious when the Government ask us to change the rulebook, for what are undoubtedly primary legislative changes, to give them the power to bring about all those changes by statutory instrument. It may be that statutory instruments can be debated—although in many cases, as we know, they are not—but the fact remains that the process of debate, particularly if it touches on matters of importance, is likely to be incomplete and unsatisfactory. My right hon. Friend the Member for Wokingham (John Redwood) so tellingly made the point about the deficiencies of our statutory instrument system in relation to not being able to ask Ministers to go away to consider the deficiencies—if I may hijack that word—in their own proposals.

That is why I have found clause 7 particularly difficult in the context of being able to support the Government. There are two ways in which the challenges of clause 7 can be met. The first is to improve the scrutiny process by which the House goes about its business. The second, as has been suggested by the numerous amendments I shall come back to in a moment, is to try to restrict the scope of the powers the Government have taken, or at the very least to get the Government during the course of the passage of the Bill to justify each and every one of them.

On the scrutiny process, the Government have moved. I tabled amendment 3, which appears on the selection list for debate this afternoon, because I went to the Hansard Society, as I am sure other hon. Members did, and got its assistance in looking at ways in which our scrutiny processes might be improved. Amendment 3 and the consequential amendments derived from it came from that exercise. I have to say to the Minister—I again endorse my right hon. Friend the Member for Wokingham; I am sorry he is not in his place to hear my eulogy of him—that we very badly need a total reform of our statutory instrument system. It is deficient in a whole range of matters. The Bill provides a possible opportunity on how we might make a significant change: providing a proper triage mechanism, giving the House a degree of control over the process, allowing for a dialogue between the House and the Minister, and still enabling statutory instruments to be enacted.

The Government, who I appreciate are under a lot of pressure over a whole range of matters, in particular the word “time”—which I think Monsieur Barnier keeps on repeating, but it is a matter with which we all in this House have to concern ourselves—have been reluctant to do that. In has stepped my hon. Friend the Member for Broxbourne (Mr Walker) to tell us that he has a different way of approaching this. Looking at the Procedure Committee’s proposals, I am impressed by what his Committee has achieved. I continue to have some reservations about some aspects, in particular the point highlighted by my right hon. Friend the Member for Wokingham on the inability to engage in preliminary dialogue and to ask for revision, but for the purpose of dealing with the avalanche of statutory instruments about to come in our direction the amendment that has been tabled will enable the House to do its job properly.

Much is going to depend—I hesitate to say this, because in this House we are all equal—on the Government’s common sense on how those who are to be appointed to the Committee are chosen. There are plenty of Members on all sides who have a keen understanding of what a statutory instrument is, a keen understanding of how it should work and an ability to sniff out when it is being misused. It is those individuals, if I may say so to my hon. Friends and to the Whips on the Government Front Bench, who ought to be appointed. Without that, a committee will have no credibility at all. I appreciate that we will have to move on to consider Standing Orders. If we do this properly and with good will on all sides, my assessment is that the Government will be helped.

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[Mr Jenkin]

May I take it therefore that my right hon. and learned Friend is offering his services on this committee?

[Mr Grieve]

I am already the Chairman of another Committee of Parliament, and I think it might be undesirable to burden me with extra work. Indeed, there are plenty of other people in this House who are capable of doing this work. Obviously, if somebody wanted to ask me, I would give it consideration, but I am always conscious of being rather too thinly spread as it is, so I do not put myself forward.

[Tom Brake]

Can the right hon. and learned Gentleman set out how he thinks the process of scrutiny will be improved for outside organisations? Many of them feel that they are excluded from this process.

[Mr Grieve]

Such organisations can be summoned before the new Select Committee. They can come along and provide input to the committee on anything that has been tabled; that has been my understanding of how it would work and, indeed, my hon. Friend the Member for Broxbourne, sitting to my right, has just confirmed that. There is a mechanism here. Obviously, to come back to the point I made earlier, this depends on the quality of the committee and shows why it will be so important. It also comes back to the Procedure Committee and how it works. For all those reasons, I think that this is a workable arrangement.

[Vicky Ford (Chelmsford) (Con)]

On the quality of the committee and the scrutiny process, the committee will be scrutinising changes to detailed pieces of European legislation. In my experience, in other countries’ Parliaments, an expert committee often does the scrutiny. So financial experts would consider a piece of finance legislation; environmental legislation would be considered by environment experts; and a judicial piece of legislation might be considered by those involved with their justice committee. Does he agree that it would be sensible to include Members with expertise in the underlying legislation, as well as in British legal practice, on the committee?

[Mr Grieve]

That would be a very sensible course of action. As I say, the burden is on the Government to show some common sense and inventiveness in how they approach this. My understanding is also that, as was mentioned earlier, the committee will not have a Government majority—

[Mary Creagh]

Eight and eight.

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

[Mr Grieve]

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

[Mr Cox]

More often.

[Mr Grieve]

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.

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[Mr Baker]

I will come back to that later, but I can tell the hon. Gentleman for a start that the translation functions of the European Union and various institutions will no longer be required.

I come now to amendment 1, from my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It has support from all sides of the Committee including, I do not mind telling him, from me, in spirit. The Secretary of State has asked me to put on record that he, too, is sympathetic to the idea of narrowing the Ministers’ discretion. My right hon. and learned Friend seeks to restrict the power of Ministers to make regulations to amend retained EU law to cases where the EU law is deficient only in the way set out in the Bill.

We have listened carefully to my right hon. and learned Friend, my hon. Friend the Member for Weston-super-Mare (John Penrose) and others, and the specific proposal in amendment 1 and amendment 56, tabled by the hon. Member for Nottingham East, is to convert the illustrative list of potential deficiencies in the law in clause 7(2) to an exhaustive list. As my right hon. and learned Friend knows, we do not think that it is possible to do that at this stage.

We know that there will be thousands of deficiencies across our statute book and it is impossible at this stage definitively to list all the different kinds of deficiencies that might arise on exit day. To attempt to do so risks requiring significant volumes of further primary legislation on issues that will not warrant taking up parliamentary time. The specifics of the deficiencies will inevitably vary between cases and it will therefore not be possible to provide a definition that accompanies them all, as amendments 264 and 265, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), also seek to do. An exhaustive list would risk omitting important deficiencies, so rendering the powers in clause 7 unable to rectify the statute book. To require primary legislation in such circumstances would undermine the purpose of the Bill and the usual justifications for secondary legislation, such as technical detail, readability and, crucially, the management of time.

We cannot risk undermining the laws on which businesses and individuals rely every day. Our goals are to exit the EU with certainty, continuity and control. However, I listened extremely carefully to the speech made by my right hon. and learned Friend the Member for Beaconsfield, my constituency neighbour, and to his appeal for us properly to consider this issue. I hope that he will not mind my saying that I think that we have already properly considered the issue, but we are perfectly willing to work with him and others to continue to reflect on this point with an eye on Report. We heard a very informative intervention on this point from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox). My right hon. and learned Friend will know that we are wrestling with the susceptibility of what we do to judicial review, which might undermine the certainty that we are trying to deliver.

[Mr Grieve]

I understand that, and I realise that I am setting a bit of a challenge. Of course, amendment 1 is only one way to deal with this. Interestingly, amendment 1 is the least justiciable route because of its clarity. Other amendments, such as amendment 2, do raise the issue of justiciability. One way or the other—I put this challenge to my hon. Friend—the Government will have to come back with something that tempers the starkness of these powers. I leave it to my hon. Friend’s discretion, which is precisely why I have not tried to fetter him over this.

[Mr Baker]

I am grateful to my right hon. and learned Friend for that intervention.

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[Mr Baker]

I will be very straightforward with my hon. Friend: we are keen to move on this issue, but, as several hon. and learned Friends have acknowledged, it is a tricky issue, so we will need to reflect further on how a movement might take place. The Attorney General, who is in his place, and the other Law Officers are well aware of this issue, but we are conscious of the imperative of being able to deal with deficiencies in the statute book, as well as of the advice of hon. and learned Friends.

[Mr Grieve]

I am sure that the Minister will deal with this on some of the other amendments, but the other limb of this is whether certain categories of retained EU law need special protection. All that, I suggest, needs to be looked at as a whole. I am convinced that if the Government do that, they will probably be able to come up with the right solution, and one that commands the confidence of the House.

[Mr Baker]

I will come to that a little later, but I hope that my right hon. and learned Friend will allow me to move forward.

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[Mr Baker]

I think that my hon. Friend has made a strong case for her membership of the sifting committee. I hope that, if the Whips Office has heard her appeal, she will become a member in due course and will enjoy it very much indeed.

Let me now deal with amendment 2. Conditions similar to those in the amendment, tabled by my right hon. and learned Friend the Member for Beaconsfield, are proposed by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in amendment 48. Again, we have significant sympathy with the intention behind the amendments. However, they would introduce new terms into the law and invite substantial litigation, with consequent uncertainty about the meaning of the law as we exit the EU.

[Mr Grieve]

Will my hon. Friend give way?

[Mr Baker]

May I just finish making my case? I must point out to my right hon. and learned Friend that I can speak for two or three hours if I take all the interventions, or I can press on.

I hope to give the Committee some reassurance. Any provision made under clause 7 must be an appropriate means of correcting a deficiency in retained EU law arising from withdrawal. It is a strong test, and it represents a significant limit on the provisions made under clause 7. The limit can ultimately be guarded by the courts, although I note what my right hon. and learned Friend said about that. However, the right place in which to determine which changes in the law are appropriate is Parliament, which is why I hope Members will accept that their concerns have been addressed by the provisions that we have made for greater scrutiny and transparency in the case of each statutory instrument.

[Mr Grieve]

I have noted my hon. Friend’s comments, and I appreciate them, but may I take him back for a moment? All these issues are linked. I acknowledge the contribution from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), but let me return to the discussion of amendment 1. One possibility might be that the list could only be added to by a statutory instrument. After all, given the extensive powers in the Bill, it would present a double lock. If the Government wanted a new power, or area of power, they could secure it through an SI anyway, because of the extent of the power that we are giving to them. The Minister might like to consider that point.

[Mr Baker]

I shall return to the clause 7 versus clause 9 argument a little later.

Amendments 3 and 4 were also tabled by my right hon. and learned Friend. The Government agree with his goal of ensuring that instruments under the Bill are accompanied by all the information that the House, the public and, indeed, the sifting committee need in order to understand what they can do and why. We also agree that more can be done to ensure that the House has the proper opportunities to scrutinise the instruments. As I have said, the Government have therefore accepted the amendments tabled by my hon. Friend the Member for Broxbourne, and we will also table amendments to address long-standing concerns about information. The Government believe that the proposed committee represents an option that balances our concerns about the ability to plan and the limited time available before exit day with some Members’ well-stated and long-standing concerns about the efficacy of the scrutiny of negative SIs in this House. Those amendments will address the unique challenge posed by the secondary legislation under this Bill, ensuring that the Government’s reasoning on procedure is transparent to the House and that the House can recommend that any negative instrument should instead be an affirmative one.

Beyond all that, the Government have tabled amendment 391 which will require that explanatory memorandums are alongside each SI and include a number of specific statements aimed at ensuring the transparency of SIs that are to come, and act as an aid to this House, providing more effective scrutiny. These statements will explain, for instruments made under the main powers in this Bill, what any relevant EU law did before exit day, what is being changed, and why the Minister considers that this is no more than is appropriate. They will also contain information regarding the impact of the instrument on equalities legislation. The wording of our amendment and that of my hon. Friend the Member for Broxbourne differs from that proposed by my right hon. and learned Friend the Member for Beaconsfield, but, as he has said, he has put his name to it and I am pleased that we are therefore able to move forward.

I turn now to the issue of what is necessary and amendments 49, 65, 205 to 208, 216 and new clause 24. Amendments 49 and 65 bring us to the important debate about whether the power in clause 7 should allow necessary corrections or appropriate corrections. “Necessary” is a very strict test, which we would expect to be interpreted by a court as logically essential. Where two or more choices as to how to correct EU law are available to Ministers, arguably neither would be logically essential because there would be an alternative. Ministers therefore need to choose the most appropriate course. If two UK agencies, such as the Bank of England or the Financial Conduct Authority, could arguably carry out a particular function, the Government must propose which would be the more appropriate choice. Also, if the UK and the EU do not agree to retain an existing reciprocal arrangement and the EU therefore ceases to fulfil its side of the obligations, the UK could decide it is not appropriate for the UK to provide one-sided entitlements to the EU27; it might not be legally necessary for the UK to stop upholding one side of the obligation, but it might not be appropriate for us to continue if the EU is not doing so.

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Amending the power so that regulations made under it could not, for example, make provisions of constitutional significance or remove any necessary protection, would be vague and opaque. It would also generate considerable uncertainty and, potentially, unnecessary litigation, given the lack of definition and clarity as to what these terms mean in practice. Again, clause 9 needs to be both clear and flexible to enable us to implement the withdrawal agreement or those elements of it needed prior to exit day which it would not be possible to include in the withdrawal agreement and implementation Bill by virtue of the time available. I therefore urge my right hon. and learned Friend not to press his amendments to a vote.

[Mr Grieve]

I can understand the Minister’s point on timing, but the reality is that the terms of amendment 13 are ones with which the Government must be very familiar, as they appear in lots of other legislation. So I find this slightly difficult to follow.

[Mr Baker]

I am grateful to my right hon. and learned Friend for putting me right on that point, but I shall now have to press on rather than explore it. [Interruption.] I am not in a position to answer it, but I will see whether my memory can be jogged.

I turn to the issue of children’s rights, where I am grateful that I have the opportunity to discuss amendment 332 and new clause 53, which stands in the name of my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). I congratulate him on the powerful speech he made, reminding the House of its obligations. His new clause has received broad support across the House, including from my right hon. Friend the Member for Loughborough (Nicky Morgan), the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and the hon. Member for North Down (Lady Hermon), among others. This new clause and amendment 332, tabled by the hon. Member for Walthamstow (Stella Creasy), give me the opportunity to clarify our position on child refugee family reunion and asylum seekers.

The Government’s commitment to children’s rights and the United Nations convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU. Domestically, the rights and best interests of a child are already protected through the Children Act 1989 and the Adoption and Children Act 2002, in addition to other legislative measures across the UK. Existing laws and commitments already safeguard children’s rights.

The Government support the principle of family unity and we have in place a comprehensive framework so that families can be reunited safely. The Dublin regulation itself is not and has not been a family reunification route. It confers no right to remain in the UK on family grounds and there is no provision for children to apply for family reunification under it. Crucially, the Dublin regulation creates a two-way process that requires the co-operation of 31 other countries. We cannot declare that we are going to preserve its terms when we need the co-operation of other countries to make it work.

We understand our moral responsibility to those in need of international protection, and that will not change as we leave the European Union. We value co-operation with our European partners on asylum and we want that co-operation to continue, but the way to ensure that is through the negotiations, not by making changes to the Bill before we have been able to make progress on this matter. I am grateful to my hon. Friend the Member for East Worthing and Shoreham and those who support his new clause but, as he said, changes are required in immigration rules. I am grateful to him for his stating the probing nature of the new clause. I ask him to work with Ministers, whom I think he said he has now met, to deliver the right changes to the immigration rules.

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[Mr Baker]

I will not give way, because I need to make progress and to keep my remarks to some form of limit.

Amendments 15 and 16, tabled by my right hon. and learned Friend the Member for Beaconsfield, seek to narrow the categories of deficiencies arising from our withdrawal from the EU. The removal of clause 7(8), as amendment 16 proposes, would restrict our ability to keep the law functioning as it does now. Subsection (8) is about deficiencies arising not only from withdrawal, but from how the Bill works. For example, the Bill does not preserve directives themselves, as we have already debated, but instead preserves the UK law, which implements them. In some instances, there are provisions in directives, giving powers or placing restrictions on Government or on EU institutions or agencies, which it would not have made sense to transpose in UK law, but which then need to be incorporated in order for the law to continue to function as it did before exit. For example, the Commission currently holds a power to restrict the disclosure of confidential information in the financial services sector, which is referenced by UK implementation of the capital requirements directive 2013, but which will need to be transferred to the UK. We might also want to transfer powers that the Commission currently has to define what counts as hazardous waste, which is currently in the waste framework directive.

Subsection (8) allows the clause 7 power to correct deficiencies that arise from that withdrawal together with the operation of the Bill. For example, it might be appropriate to lift a relevant part of a directive and insert it into UK law in order to keep the law functioning as close as possible to how it does presently.

[Mr Grieve]

If I may say to the Minister, he has actually provided a totally coherent and helpful answer, which dealt with a probing amendment that I tabled. I am most grateful to him for it.

[Mr Baker]

Well, I am extremely grateful to my right hon. and learned Friend, who I am very happy to see does remain my friend, as well as my constituency neighbour. I cannot tell him how happy I am to discover that that is the case.

Earlier, my right hon. and learned Friend asked me why Government could not accept additional protections requirements in amendment 13, given that that appears in other legislation. A similar test does appear in the Legislative and Regulatory Reform Act 2006, but the powers in that Act are rarely used, in part because of its complicated requirements. Moreover, the detail of that Act and its powers justify such a test as it is about deregulation. We consider that the existing restrictions in clause 9 are the right ones.

I move forward to amendments 131, 269 to 271, and 359 on restriction of the powers relating to EU citizens’ rights. Since those amendments were tabled, we have secured much-needed agreement on citizens’ rights through our negotiations. I hope Members will be glad that we have now made sufficient progress, subject to the European Council meeting, and that we will be able to move forwards.

The final agreement with the European Union on citizens’ rights is still subject to our negotiations with the EU. However, of course, we expect to give effect to those in the withdrawal agreement and implementation Bill. The House will therefore have both a meaningful vote on the agreement and on its debates on the primary legislation necessary to implement it. I therefore invite hon. Members to withdraw their amendments.

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Conferring powers on public authorities to allow them to make provisions of a legislative character or other legislation can be an appropriate course of action, particularly where there is a need for specialised, technical rules to be developed, introduced and maintained by a body that has the necessary dedicated resource and expertise. There are good examples of where Parliament has already provided for this approach in the UK. Our financial regulators, the Prudential Regulation Authority and the Financial Conduct Authority, have been given the responsibility by Parliament of developing and making the detailed rules needed to ensure that financial services firms are stable and well managed and meet the needs of consumers. Of course, those regulators can exercise their rule-making powers only according to the policy set by Parliament.

[Mr Grieve]

My hon. Friend touches on an important issue. Might it not be the case that any such power done by regulation ought to be done by affirmative resolution? I just suggest that that might be the solution to dealing with tertiary powers, because of their unusual nature. In view of the list he has given us, it seems to me that, in all likelihood, these things would be done by affirmative resolution, but that is something the Government might like to consider between now and Report.

[Mr Baker]

I just draw my right hon. and learned Friend’s attention to paragraph 1(2)(c) of part 1 of schedule 7, which would require that the affirmative procedure be used if a provision

“provides for any function of an EU entity or public authority in a member State of making an instrument of a legislative character to be exercisable instead by a public authority in the United Kingdom”.

So instruments of a legislative character coming across would trigger the affirmative.

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[Mr Grieve]

I take it, therefore, that that covers all the points my hon. Friend has just raised at the Dispatch Box.

[Mr Baker]

There are also some matters in relation to fees and charges, which we discussed earlier in the debate. What I would say to my right hon. and learned Friend is that, where he has doubts, we have agreed to the sifting committee, and if he is concerned, I hope he will consider membership of that committee so that he can play his part in seeing through this set of measures.