I rise to speak briefly to amendments 48, 49 and 52 in my name. They have cross-party support, including from other Select Committee Chairs, because they are about safeguarding the role of Parliament and preventing the concentration of power in the hands of the Executive.
Before I talk in detail about those amendments, I want to support new clause 53 and the words of my Home Affairs Committee colleague, the hon. Member for East Worthing and Shoreham (Tim Loughton). He is right that we need to continue with our historical obligations towards refugees and with the principle of family reunion, ensuring that child refugees are not separated from their family and do not lose their rights to be reunited with family members who can care for them, especially when families have been separated by persecution and conflict. He is also right that this is about preventing the people traffickers, the exploitation and the modern slavery that can cause such harm and blight so many lives.
Our Committee has often found evidence that leads us to want the Dublin III process to work faster and more effectively, not for the principles behind it to be ripped up and thrown away. I therefore welcome the fact that, as the hon. Gentleman has said, Ministers have shown an interest in supporting the continuation of these historical obligations. I hope that that will be addressed if not in this Bill, then in either an immigration Bill or in the withdrawal agreement Bill in due course.
The amendments I have tabled to clause 7 address the concern, raised by so many of us, that Parliament is being asked to hand over considerable powers to the Executive without sufficient safeguards. That concentration of powers in the hands of the Executive—a concentration not seen since the days of the infamous Tudor monarch—goes against the very reason why all of us were elected
to this place: the legislature has an historic obligation to place checks on the power of the Executive, in order to prevent concentrations and abuses of power, in relation to Brexit or to anything else. It is an obligation that each of us takes on when we swear the oath at the Dispatch Box.
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I welcome the restrictions and new processes that the Procedure Committee has proposed, but I do not think that they go far enough to address the potential concentrations of power in clause 7. It would still be up to Ministers to decide whether to accept the Committee’s advice on whether to use the affirmative or negative procedure. Either way, the clause, as drafted, still allows Ministers to use secondary legislation for an immensely wide range of amendments to primary legislation, and in a way that is not restricted to what is needed for the Brexit process. The clause allows Ministers to use delegated legislation wherever they believe that to be appropriate, giving them huge powers of discretion to decide what they think any failure of retained EU law to operate effectively means, or to decide what constitutes a deficiency in retained EU law.
Instead, amendment 49 would introduce a necessity test. It states that powers should be used only when they are needed
“to adapt the body of EU law to fit the UK’s domestic legal framework.”
Such a “necessity clause” was recommended by the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee. I cannot see what the objection would be to including such a clause in the Bill. Ministers have said that the purpose of the clause 7 powers is to do what is needed, so why not make that clear in the Bill? “Necessary” is a much higher legal threshold. As the Bill is currently worded, Ministers will simply have to demonstrate, if faced with a legal challenge to their use of these powers, that they took a reasonable view that something was appropriate. With a necessity clause in place, they would have to satisfy the courts that the regulation was in fact required to address the deficiency in question.
When we are talking about giving away Parliament’s powers to the Executive, and such far-reaching powers, surely there should be a higher test of the circumstances in which they can be used, rather than just when Ministers think it is appropriate. Surely we should do that only when it is really needed. We always hand over power to the Executive when we give powers to make secondary legislation, but in clause 7 we are also giving Ministers huge scope to decide how and when those powers should be used.
Amendment 48 sets out another way to tighten the scope of delegated powers. It would put in place the same safeguards currently set out in the Legislative and Regulatory Reform Act 2006. It would require any changes to be proportionate and it would require Ministers not to remove any necessary protections or rights and freedoms. It is similar to amendment 2, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve). It reflects the fact that Parliament has previously given the Executive powers to make secondary legislation, but in the 2006 Act we also put in place a
whole series of safeguards. Not even to put those safeguards in the Bill seems extraordinary. Those are the safeguards that Parliament has previously agreed in order to prevent abuse, and I think that they, as a minimum, should be used for this Bill.
Amendment 52 would provide further protection for equalities legislation. There is no justification for reducing the level of legal protection against discrimination afforded by the Equality Act 2010, and the amendment would simply make that clear in law. The Equality Act is the culmination of decades of domestic protection for equalities, and I see no reason to amend, repeal or revoke any bit of it as a consequence of Brexit. The Government have instead put forward amendment 391, but it is insufficient, frankly, because all it would do is require Ministers to make statements that they have had regard to equalities legislation, and if they do not make a statement then another Minister has to make a statement as to why. Why not simply prevent the Government using clause 7 to repeal, change or reduce the provisions in the Equality Act?
Amendment 52 would have the same effect as amendment 25, tabled by those on the Opposition Front Bench. If they press their amendment to a vote, I will not press mine, but I believe that there should be a vote this evening on the issues of necessity and restricting the powers in clause 7. If other Members, such as the right hon. and learned Member for Beaconsfield, do not intend to press any of their amendments on a necessity clause to a vote, then I would like to press my amendment 49.
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.