It is a pleasure to serve under your chairmanship, Mrs Laing, and to follow the right hon. Member for West Dorset (Sir Oliver Letwin). I rise to speak to new clauses 63 and 1, amendments 32 and 25, which stand in my name and those of my right hon. and hon. Friends, and amendments 342, 333, 350, 334 and 33 to 41.
For the purposes of clarity, I intend to break my remarks down into three parts. I will first speak to those new clauses and amendments that relate to the purpose, scope and limits of clause 7. I will then turn to those that relate specifically to the clause 7 power to transfer functions from EU entities and agencies to UK competent authorities. I will finish by turning to new clauses and amendments that relate to the Government’s proposals about how Parliament will scrutinise and, where necessary, approve secondary legislation made under the powers provided for by not only clause 7, but clauses 8, 9 and 17.
I turn first to the purpose, scope and limits of clause 7. As I said when winding up for the Opposition in the debate on Second Reading, the delegated powers conferred on Ministers under clause 7, and clauses 8, 9 and 17, are extraordinary in their constitutional potency and scope. They are, to put it plainly, objectionable and their flaws must be addressed before Third Reading. As such, when it comes to the correcting powers provided for by clause 7, what we are debating is not whether there is a need to place limits on these powers—that, I hope, is beyond serious dispute. What is at issue today, and what I intend to cover in the first part of my remarks, is what limits should be placed on these powers and why.
Just as the Opposition accept that the Brexit process requires legislation to disentangle the UK from the European Union’s legal structures and to ensure that we have a functioning statute book on the day we leave, we also understand, in light of the legislative reality that must be confronted between now and exit day, that no Government could carry out this task by primary legislation
alone. We therefore accept that relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary are, and will be, an inevitable feature of the Bill. Given how much EU and EU-related law has been implemented through primary legislation, we also recognise that the Bill will have to contain Henry VIII clauses. We appreciate that there is a difficult balance to be struck between the urgency required to provide legal continuity and certainty after exit day and the equally important need for safeguards to ensure we maintain the constitutional balance of powers between the legislature and the Executive.
We also believe, however, that to the extent that relatively wide delegated powers are necessary, they should not be granted casually and where they are granted they should be limited, wherever possible, and practical. That is particularly important given how remarkable the correcting powers provided under clause 7 are in their potency and scope. On their potency, it is important to recognise that the Henry VIII powers contained in clause 7 are of the most expansive type. As has already been noted by my hon. Friend the Member for Nottingham East (Mr Leslie), clause 7(4) makes it clear that the power granted by subsection (1) can be used to enact regulations that make any provision that could be made by an Act of Parliament, and clauses 8(2) and 9(2) make equivalent provision in respect of the powers conferred by both those clauses.
These are extraordinary powers, for if it is possible for regulations made under clause 7(1) to make any provision that could be made by an Act of Parliament, that must extend logically to amending or repealing any kind of law, including provisions in other Acts, in the context of wide-ranging purpose of the clause: to remedy any deficiencies that arise in retained EU law. Furthermore, schedule 7(1)(2)(f) explicitly confirms that the powers in clause 7 can be used to create powers “to legislate”. As the powers can be used to do anything that could be done by Act of Parliament by means of subsection (4), the Bill itself can be used to create further Henry VIII powers. As such, if this Bill is passed unamended, we face the prospect of Ministers—perhaps not this Minister or Ministers in this Government—having the ability to use the Henry VIII powers in this Bill to confer further such powers upon themselves or other UK institutions; we are talking about delegated legislation piled on top of delegated legislation. That is an outcome that no Member of this House should regard as an acceptable prospect, but it is possible using the powers conferred under clause 7, as drafted.
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As with so much of the Bill, this House is being asked again and again to take it on trust that Ministers will not abuse these powers. Frankly, Labour Members are not willing to take anything on trust and no hon. Member should be. The constitutional potency of the delegated powers in clause 7 is matched by their extraordinary scope. I accept that that scope is not limitless—they are subject to certain express restrictions as set out in subsection clause 7(6), but those restrictions are limited. Even with those restrictions in place, what could be done by Ministers using these powers remains extremely broad, not least because of the imprecision of the language used in subsection (1) and its subjective nature in key respects.
First, as my hon. Friend the Member for Nottingham East has mentioned, subsection (1) states that the Minister may make
“such provision as the Minister considers appropriate”
to address a deficiency in retained EU law arising from withdrawal. I listened carefully to the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker), last week when he defended this wording as it related to schedule 2, on the grounds that to replace “appropriate” with “necessary” or “essential” would be unduly restrictive, could be interpreted by a court to mean logically essential and would therefore limit the discretion Ministers need in cases where two or more choices on how to correct retained EU law are available. But Ministers must accept that the subjectivity inherent in the choice of the word “appropriate” remains a concern across this House and they need to further elaborate, not only on why its use would not render the power in clause 7 open-ended, but on why the Government chose to use the phrase “where necessary” in their White Paper on the Bill, published in March—this is at paragraph 3.7. We need to know why that has changed and why Ministers now believe that “appropriate” and not “necessary” is the right language to use in the Bill.