I understand my hon. Friend’s point. Just to reassure him: it is our firm intention to carry through the agreement, which he can read in the joint report of the negotiators, into legislation so that citizens can rely on it in the United Kingdom through that withdrawal agreement and implementation Bill, which I hope we can put before the House in due course.
Amendments 31, 32 and 57 seek to remove so-called Henry VIII powers. I can confirm that amendment 32 is not necessary because the power in clause 7 cannot be used to amend the Act itself. It would be outside the scope of the power—ultra vires. Neither can the power in clause 8 be used for this purpose. Let me be clear: only the power in clause 9 states that it can amend the Bill. None of the other powers in the Bill make that statement. As I said earlier in an intervention, in the event that the use of a clause 9 power is proposed to amend the Act, it would be subject to the affirmative procedure.
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Amendments 57 and 110, meanwhile, would unnecessarily and seriously limit our ability to make corrections. Whether the deficiency is in primary or secondary legislation, it is not a meaningful indication of the type of change that needs to be made or the significance of the change. To be ready for exit day, a large number of fairly straightforward changes will need to be made to primary legislation in exactly the same way as they might be made to secondary legislation. For example, section 21(1) of the Public Passenger Vehicles Act 1981 makes reference to “in another member State”. Section 21(3)(b) says,
“of the other member State”,
and paragraph 7(c) of schedule 3 says, “by another member State”. The power therefore needs to be broad enough to allow for corrections to be made to both primary and secondary legislation. We are more concerned
with the category of changes that must be made than where they are required. Textual and technical changes must be made in primary legislation if we are to have a functioning statute book on exit day. That is why we are allowing this secondary legislation to amend primary legislation.
The Bill, like almost all others, contains a long list of definitions that could conceivably require updating in the future. To do so pursuant to some future Act by a statutory instrument would be to exercise a so-called Henry VIII power. However, let us consider a hypothetical scenario. A statutory instrument made under the Health and Safety at Work etc. Act 1974 will contain key elements of the UK’s occupational safety regime in secondary legislation. That could be amended by statutory instrument. Now, we do not propose to do such a thing. I am just trying to indicate that although that would be a case of amending secondary legislation through secondary legislation—not a Henry VIII power—it would have profoundly important effects. The point I am making is that, although the argument about Henry VIII powers is rhetorically powerful, we are most concerned about the category of change that needs to be made and not, first and foremost, where it needs to be made. I am pleased that we have been able to accept the sifting committee amendments and bring forward the commitments to the information in the explanatory memorandum so that the Committee can be comfortable with the powers that we are using. It is the Government’s position that it is the substance of the change that matters.
Amendments 5, 61, 88, 104, 108, 121, 342 and new clause 37 would all impose some restriction on the clause 7 power concerning public bodies. If we want to provide certainty for citizens and business, it is important that we are able to ensure that all important functions currently carried out at an EU level can be carried out at a UK level in time for exit day. Amendments 121 and 108 would hamper this by preventing the power from being used to create new public bodies. We envisage using the power in this way only very rarely because an existing UK body should be able to take on the function in most instances. In addition, any use of the power to create new bodies would be subject to the affirmative procedure, so both Houses would need to approve the Government’s proposal. The provisions sought by amendment 104 to make any new public bodies temporary would simply defer uncertainty for later and cause unnecessary disruption.
The Government agree that we should ensure that no important functions are lost as we leave the EU, as amendments 5, 61 and 342 and new clause 37 seek to do. However, that is precisely why we need the clause 7 power. There might be a small number of functions that do not make any sense outside the EU—for example, the functions of the Translation Centre for the Bodies of the European Union, or the authority of the European political parties and European political foundations. Those functions could be removed only if, outside the EU, they were somehow deficient, and not simply because, as a matter of policy, Government disliked them. The power could not be used to remove functions relating to rights and protections—the concerns of amendment 342 and new clause 37—unless they somehow became deficient outside the EU, and removing functions entirely was an appropriate response. All of that would, of course, be laid out in the accompanying explanatory memorandum.
The normal requirements in relation to producing impact assessments will apply, as appropriate, where we replace, abolish and modify functions, as sought by amendment 88. In addition, we have already committed to producing an explanatory memorandum with each instrument. I hope I have satisfied the concerns of right hon. and hon. Members in regard to those amendments.
Let me move on to the power to sub-delegate legislative functions. I thank my right hon. and learned Friend the Member for Beaconsfield, and I should pay tribute to him at this point, because it is appropriate to say that his contribution to this Bill will long be remembered in history for its substance and quality and for keeping me on my feet on matters I had never dared to think I would trespass on.
As I have already stated during the debate, ensuring that all important functions currently carried out at EU level can be carried out in an appropriate way in the UK in time for exit day is a vital part of providing certainty for businesses and individuals. We recognise that the transfer of legislative functions to public authorities and the creation of new such powers may concern many Members. Again, it is not something that anyone should take lightly. However, conferring powers on public authorities to make legislation is not a novel approach in the UK. While my right hon. and learned Friend has used the courts and tribunals as one example of where this currently happens, there are other important areas where it already happens, and where it will be necessary to transfer EU legislative functions to UK bodies.
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.