There might have been, but as a loyal member of the Conservative party over many years, I have always been of the opinion that the best way to try to influence one’s party’s policy is in the quietest way
possible. As this issue has the merit of being able to succeed in that way, I shall stick to my strategy. Of course, if and when I think it necessary for me to do something else, I could, very reluctantly, be forced to do so. On this matter, however, I prefer to leave it.
I turn to a related matter about which I did table an amendment, which I do not wish to press to a vote. It goes to the other issues about the certainty of retained EU law. There is an inevitable internal incoherence about how retained EU law is being handled in the Bill. In reality, retained EU law has a primary quality, because in all likelihood most of it is supreme over our own laws. Oddly enough, that situation is going, at least in part, to be retained, but the Government have dealt with that by allowing it all to be altered through statutory instruments.
In Committee, we tried to find a way out—I tried quite hard. That is why I have tabled new clause 13, which provides a way of identifying what EU legislation is in reality primary and what is secondary. I thought that the House might be interested—if it is not, the other place might be—in how one might go about making that separation, which would then provide a sensible measure of greater certainty. At the moment, the Government’s proposal, as I understand it, is that each measure will be dealt with on a case-by-case basis. That seems a rather extraordinary way in which to proceed.
1.15 pm
For that reason, I have put the new clause and a couple of consequential amendments forward for the consideration of the House. If the proposal were to be accepted, or taken away and thought about further, it would allow for what I think would be a credible mechanism by which we could identify primary and secondary legislation that had been retained and had come to us from the EU. I will say no more about that.
My right hon. Friend the Member for Chesham and Amersham (Dame Cheryl Gillan) is not in the Chamber this afternoon, but she also put forward the issue, which comes into this bracket, of whether after exit day people would be able to litigate on matters that arose pre exit day exactly as if we had remained in the EU. That raises a fundamental issue of legal propriety that as yet remains unresolved. I note that the Government have not responded, although I understood that there would be a response. Perhaps it will come in the other place, in which case I will greatly welcome it.
I am conscious that I do not want to take up more of the House’s time. We have a problem that ought, in fact, to unite both sides of the House about how best to go about retaining what is best of EU law. Although we have made some steps in the right direction, I regret that I do not think we have yet got anywhere near enough to the point at which I can feel really comfortable that we have done things as well as we should.
Fortunately—or unfortunately, because in many ways I would love to get the process of Brexit out of the way as quickly as possible—we will have ample time over a considerable period to reflect on this matter before we finally achieve some longer-term stability. That encourages me to allow the Government to reflect, rather than challenging them on this issue.