Ms Nusrat Ghani
MP for Sussex Weald · Conservative · United Kingdom
“Before we come to the urgent question, I must say how disappointing it is that the Government were not forthcoming with a proactive ministerial statement on this matter. The disruption to aviation and the impact on many constituents has been considerable.”
“The point of order and its content are not a matter for the Chair. I have not been notified of any Minister coming forward at this point, but I have only just come into the Chair. If the hon.”
“(3) Regulations under section 14Z45B must provide that, where an out-of-hospital service is to be provided to a patient, the integrated care board must— (a) offer the patient a choice of at least two providers capable of providing the service, which may include NHS bodies and independent sector providers approved to provide that service u…”
“(2) For the purposes of subsection (1), the relevant requirements are— (a) that the special educational provision set out in section F of an EHC plan meets the needs identified by an EHC needs assessment; (b) that ICBs can be required to provide such special educational provision; (c) that ICBs must provide such special educational provis…”
“(3) The Charter must— (a) set out the fundamental principles and responsibilities for assessing whether a data sharing partnership is in the interest of the public and the NHS; (b) include the primary goal of protecting people’s privacy and their data from exploitation, while promoting trust in data systems and the handling of health data…”
“(2) Arrangements under subsection (1) must, so far as reasonably practicable, provide for— (a) general practitioners, dentists, pharmacists and other relevant primary care professionals to work together as part of integrated local primary care teams; (b) the sharing of relevant patient information between those professionals through secur…”
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“As set out already, the Government have committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, which includes maintaining the UK’s obligations under the trade and co-operation agreement or the Northern Ireland protocol. We will come on to consider an amendment that will allow us to spend more time discussing that issue. This Bill will not lead to legal uncertainty—to have perfect legal certainty would mean that we would forever keep the same laws. Our approach is to improve accessibility and legal clarity by codifying, where necessary, rights and principles expressly into domestic statute.”
“This is turning into a very interesting morning indeed, Chairman. I rise to resist new clause 8. This new clause seeks to set conditions on the commencement of clauses 3, 4 and 5 of the Bill. I will explain to the right hon. Member for Ellesmere Port and Neston why we are making the changes in these clauses. Each clause is vital to this Government’s programme to reform retained EU law. That there are still circumstances where retained EU law takes precedence over UK law is not consistent with our status as an independent nation. The principle of EU supremacy must be ended without delay. These amendments would add further delay by requiring the Government to write reports on items to which we have already committed.”
“The Equality Act 2010 has, to date, brought together more than 116 pieces of legislation into a single Act—a streamlined legal framework to protect the rights of individuals and to advance equality of opportunity for all. There is no equivalent to that Act in EU law, which shows how important it is that we are able to express principles such as equality before the law in a UK statute rather than relying on principles of EU law.”
“We either accept the supremacy of the EU or accept the supremacy of this place. We can go round and round, but only one can prevail, and the Government believe that this Parliament should be supreme. On the protection of fundamental rights and the equality principle, the principle of fundamental rights is generally not the exclusive preserve of the EU. We are proud of the history of the UK legal systems in which common law principles and legislation are well established to protect fundamental rights. For example, the principle of equality before the law is rooted deeply in British law. It was in 1215 that Magna Carta first acknowledged that British people had legal rights and that laws could apply to kings and queens too.”
“That assumes that we would not be treating people equally and fairly, and that is not the case when we legislate in the UK. I do not buy the idea that without EU law we are incapable of governing fairly in the UK. We are all elected to Parliament to represent our constituents, and we want to go home and tell our constituents, regardless of who they are and where they are from, that we are legislating fairly for everybody. Why are we removing the principle of EU supremacy? That principle means that pre-2021 domestic law must give way to some pieces of retained EU law when the two conflict. That ensured legal continuity at the end of the transition period, but it is constitutionally anomalous and inappropriate, as some domestic laws, including Acts of Parliament, are subordinate to some pieces of retained law. That is the nub of the issue.”
“Exactly. My right hon. Friend is incredibly knowledgeable on all those issues, and I am more than happy to defer to him; he is absolutely right. We reject new clause 8.”
“The hon. Member for Walthamstow was inaccurate. Hansard will show that I did mention Northern Ireland; I made that clear. An amendment that we will consider later today will allow us to do justice to the issue.”
“The amendment, however, would reinforce the excessive influence of the European courts and judgments on our domestic courts, and limit judges’ ability to decide to depart from retained EU case law, as should be their right and responsibility. I therefore ask the hon. Gentleman to withdraw the amendment.”
“I rise to resist amendment 79, which puts in place too high a bar for UK courts to depart from retained case law, including judgments made and influenced by the EU courts. Clause 7 will free our courts to develop case law on retained EU law that remains without being unnecessarily constrained by the past judgments of these new foreign courts. The clause introduces a new test for higher courts to apply when considering departure from retained EU case law. The test gives higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from retained EU case law.”
“The structure of the Law Officers’ powers is consistent with the established position of the Lord Advocate within the Scottish Government, as in other contexts the structure rightly allows the Lord Advocate to represent the Scottish Government’s views on the interpretation of devolved legislation, but not legislation that is reserved to Westminster.”
“In the light of a new test for departure from retained case law, the powers will allow the Law Officers to bring such matters before a higher court for a decision after hearing the relevant Government’s view on the correct interpretation of relevant retained EU law. Consequently, it is right that the intervention power is not available in relation to points of law that concern the retained functions of the Lord Advocate as a prosecutor. Those functions concern legislation that is reserved to Westminster.”
“Proposed new section 6C of the European Union (Withdrawal) Act 2018, established in clause 7 of the Bill, gives Law Officers the power to intervene in cases before the higher courts and present arguments for them to depart from retained case law following the new tests for departure in the Bill. These provisions are framed so that Law Officers may exercise the intervention powers on behalf of their respective Governments in cases where other Ministers or the Government as a whole have a particular view on the meaning and effect of relevant pieces of retained EU law for which they are responsible.”
“The amendments would remove the Scottish courts and Law Officers from the lower to higher court reference procedure and from the Law Officer reference procedure. However, consistent with EU exit legislation, these measures in the Bill will apply to the whole UK. This will give courts in all four of our great nations greater freedom to develop case law unimpeded by the excessive influence of the European courts. In addition, amendment 47 would give Law Officers of the devolved Administrations the power to intervene in reserved matters, which is not constitutionally appropriate.”
“They will be able to refer points of law relating to retained case law to higher courts for a decision, which, if successful, could result in the lower court departing from retained case law where it would otherwise be bound by it, enabling a faster and more dynamic evolution of our domestic case law away from the influence of EU law. The clause also provides UK Government Law Officers and Law Officers of the devolved Administrations with the power to refer points of law arising on retained case law to the higher courts where proceedings have concluded. It will give Law Officers the power to intervene in cases before the higher courts and present arguments from them to depart from retained case law. This will ensure the appropriate development of the law as we move away from the influence of EU case law and the rules of interpretation.”
“There is too high a bar for UK courts to depart from retained case law, including judgments made and influenced by EU courts, so I rise to resist amendments 38 to 42 and 44 to 47. Clause 7 will free our courts’ developed case law and retained EU law that remains in force, without being unnecessarily constrained by the past judgments of these foreign courts. The clause will introduce new tests for higher courts to apply when considering whether to depart from retained EU case law and retained domestic case law. Lower courts will also be given greater freedom.”
“As I just said, the structure of the Law Officers’ powers is consistent with the established position of the Lord Advocate within the Scottish Government, as in other contexts the structure rightly allows the Lord Advocate to represent the Scottish Government’s views on the interpretation of devolved legislation, but not legislation that is reserved to Westminster. For those reasons, I ask the hon. Member for Argyll and Bute to withdraw the amendments.”
“We consider the structure of the Law Officer powers to be consistent with the established position of the Lord Advocate within the Scottish Government. As in other contexts, the structure rightly allows the Lord Advocate to represent the Scottish Government’s views on the interpretation of devolved legislation but not legislation reserved to Westminster. For those reasons, we ask the hon. Member for Argyll and Bute to withdraw his amendment.”
“The powers allow Law Officers to bring the matters before a higher court, in the light of the new test for departure from retained case law, for a decision after hearing the relevant Government’s view on the correct interpretation of a relevant retained EU law. That will allow Law Officers and the Lord Advocate to ensure an appropriate development of the law as we move away from the influence of EU case law and the rules of interpretation. It would consequently be inappropriate for the Lord Advocate, on behalf of the Scottish Government, to exercise the reference and intervention powers where the points of law relate to reserved legislation. That includes points of law that concern the retained functions of the Lord Advocate as a prosecutor, as those functions concern legislation that is reserved to Westminster.”
“Amendments 48 and 93 concern new section 6C, which gives Law Officers the power to intervene in cases before the higher courts and present arguments for them to depart from retained case law following the new test for departure in the Bill. It is right that references and interventions by the Lord Advocate are restricted to the points of law within the devolved competence of the Scottish Government. The provisions are framed so that Law Officers may exercise the reference and intervention powers on behalf of their respective Governments in cases where other Administrations have a particular view on the meaning and effect of a relevant piece of retained EU law for which they are responsible.”
“I will try to address all the points raised because I know how seriously they are taken by Opposition Members. The Committee should reject amendments 35, 36, 37, 48 and 93 as they would give Law Officers of the devolved Administrations the power to intervene in reserved matters, which is not constitutionally appropriate. Amendments 35, 36 and 37 concern proposed new section 6B, established by clause 7 of the Bill, which provides UK Government Law Officers and Law Officers of the devolved Administrations with the power to refer points of law arising from retained case law to the higher courts, when proceedings have concluded, for consideration against the new test for departure set out by the same clause.”
“I beg to move amendment 5, in clause 7, page 9, leave out lines 5 and 6 and insert— “(2) The following are entitled to notice of the proceedings— (a) each UK law officer; (b) the Lord Advocate; (c) the Counsel General for Wales; (d) the Attorney General for Northern Ireland.” This amendment and Amendment 6 leave out the definition of “devolved law officer” from subsection (5) of new section 6C of EUWA and instead mention each devolved law officer in subsection (2) of that section.”
“I will be brief. Conservative colleagues will be keen to know that we are accepting amendments 5 and 6, which will remove references to a “devolved law officer” and replace them with the specific titles of the law officers in Scotland, Wales and Northern Ireland where appropriate. This is a policy-neutral change requested by the Scottish Government and tabled by this Government in the spirit of collaboration and co-operation. Amendment 5 agreed to. Amendment made: 6, in clause 7, page 9, leave out lines 20 and 21. —(Ms Ghani.) See the statement for Amendment 5”
“The House already has its usual robust and effective scrutiny processes in place to hold Ministers accountable in relation to the Government’s commitments under the Northern Ireland protocol. In addition, these are bespoke arrangements in relation to the EU Withdrawal Agreement Joint Committee where the UK and EU jointly oversee each other’s implementation, application and interpretation of the withdrawal agreement, including the Northern Ireland protocol—for example, the publication of the annual report of the Joint Committee to aid Members’ scrutiny. Adequate processes are already in place, and the introduction of a new statutory reporting requirement is not an appropriate use of Government or parliamentary time. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.”
“The provisions in the Bill enable the Government to ensure that the retained EU law that gives effect to article 2 of the protocol is preserved beyond the sunset, or that an alternative provision is created to meet such requirements. The restatement power will also allow the UK and devolved Governments to codify case law and other interpretative effects where it is considered necessary to maintain article 2 commitments. Clause 7’s provisions concerning case law do not apply in relation to obligations under the protocol. Section 6(6A) of the European Union (Withdrawal) Act continues to apply, so that our new test for departing from retained EU case law is subject to the rights and obligations in the protocol.”
“The Government have already committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol. The UK is committed to ensuring that rights and equality protections continue to be upheld in Northern Ireland. I therefore ask the Committee to reject this amendment. Article 2’s reference to “no diminution of rights, safeguards and equality of opportunity” demonstrates the UK Government’s commitment to ensuring that the protections currently in place in Northern Ireland of the rights, safeguards and equality of opportunity provisions set out in the relevant chapter of the Belfast/Good Friday agreement are not diminished as a result of the UK leaving the EU.”
“The preservation and restatement powers in the Bill or other existing domestic powers, such as section 8C of the European Union (Withdrawal) Act, will ensure that retained EU law that gives effect to article 2 rights is either maintained beyond the sunset or the alternative provision is created to meet such requirements. The delegated powers in the Bill, particularly the restatement powers, will provide the ability to recreate the effects of secondary retained EU law, including the interpretative effects of case law and general principles of supremacy where it is necessary to uphold article 2 rights. That provides a mechanism through which national authorities might implement article 2 obligations. As I said earlier, I asked the hon. Member for Argyll and Bute to withdraw the amendment.”
“The bar for the UK courts to depart from retained case law in the judgments of EU courts is too high, and there continues to be an overriding desire for our judicial decisions to remain in line with the opinion of the Court of Justice of the European Union. Clause 7 will free our courts to develop case law and retained EU law that remains in force without being unnecessarily constrained by the past judgments of these now foreign courts. Question put and agreed to. Clause 7, as amended, accordingly ordered to stand part of the Bill. Ordered, That further consideration be now adjourned. —(Joy Morrissey.)”
“It is a privilege to spend the afternoon with you in the Chair again, Sir George. In certain areas of legislation, for example on data protection, it is likely necessary to specify that certain effects of the existing legislative hierarchy are maintained, to ensure the continuation of the legal regime. The clause therefore establishes a new power to maintain intended policy outcomes by specifying the legislative hierarchy between specific provisions of domestic legislation and provisions of retained direct EU legislation or assimilated direct legislation to maintain the current policy effect.”
“We intend that to ensure that our domestic law operates as the UK Government want it to. Each Department will of course be responsible for REUL elements within their portfolio. Question put and agreed to . Clause 8 accordingly ordered to stand part of the Bill. Clause 9 Incompatibility orders”
“The hon. Gentleman asked about assessment. The REUL reform programme has been under way for more than a year. Departments have been engaged as to the effect of removing EU law principles—such as that the EU is the only one that can create principles and legislation—which is what we are working on. The work will continue to take place. On the evidence about changing interpretation rules under clause 4, in specific cases—data protection regulation and competition law—removing the principles of interpretation as set out in the EU (Withdrawal) Act 2018 will cause unintended policy consequences as a result of the way that the legislation has been written. The compatibility power will ensure that the relationships between individual pieces of domestic legislation going forward are maintained.”
“Similar court orders could also be made under the European Communities Act 1972, where conflicts arose—again, with no such scrutiny procedure. Once again, the hon. Member for Leeds North West raised environmental regulations. To repeat myself, we will not weaken environmental protections. The UK is a world leader in environmental protection and, in reviewing our retained EU law, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. We are committed to delivering our legally binding target of halting nature’s decline by 2030. I therefore ask the hon. Gentleman to withdraw the amendment.”
“Where the court considers it relevant, the order could set out the effect of the incompatible provision in that particular case, delay the coming into force of the order, or remove or limit the effect of the operation of the relevant provision in other ways before the incompatibility order comes into force. The clause is a matter of judicial process. It grants powers to the courts but does not change any rights or protections in and of themselves, which is a matter for Parliament in the scrutiny of this Bill. We do not need to create a new scrutiny process for incompatibility orders. A process of “declaration of incompatibility”, similar to that set out in clause 9, exists under the Human Rights Act 1998, and no new scrutiny procedure, such as the one proposed by this amendment, has been deemed necessary.”
“The clause gives the judiciary powers in connection with the ending of the supremacy of EU law. It requires a court or tribunal to issue an incompatibility order where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation. It gives the judiciary broad discretion to adapt the order to the case before it. That includes granting remedies to the effect of the incompatibility. Courts generally have wide discretion to grant remedies that they may grant in a given case, and the clause is consistent with that principle.”
“Now that we have left the EU, it is only appropriate for retained direct EU legislation that was not scrutinised or approved by Parliament to be treated in the same way as domestic secondary legislation, which is amendable by existing delegated powers that this Parliament has approved. For those reasons, I ask the hon. Member to withdraw his amendment.”
“I remind him that all statutory instruments that are subject to parliamentary procedure must be accompanied by an explanatory memorandum. These memorandums provide Parliament with the information and explanations required. When powers are exercised by virtue of paragraph 3(1) to schedule 8, explanatory memorandums would be laid as appropriate. Any statutory instrument that reforms retained direct EU legislation made under existing delegated powers will be subject to the proper processes for impact assessments. However, a blanket requirement for impact assessments is not appropriate as some reforms could fall below the de minimis threshold set out in the “Better regulation framework” guidance.”
“I recognise that none of that was directed at me personally, but rather collectively at all Ministers. I beg hon. Members to reject the amendment. The Government recognise the significant role that Parliament has played in scrutinising instruments to date and we are committed to ensuring the appropriate scrutiny of any secondary legislation made under existing delegated powers. We must end the restriction that some existing powers may only be used to amend retained direct principal EU legislation or rights under section 4 of the European Union (Withdrawal) Act 2018 if they are also capable of amending domestic primary legislation. The hon. Member for Glenrothes suggests that a written ministerial statement made by a Secretary of State is accompanied by an oral statement when an existing power is exercised.”
“It would be wholly inappropriate if, for example, updating individual provisions adding cheese and honey to the simplified active substance list required the approval of both Houses of Parliament, the Scottish Parliament and the Welsh Parliament. Making it easier to use pre-existing powers to amend assimilated retained direct EU legislation, while ensuring it receives the most suitable level of parliamentary scrutiny, will ensure our regulations can be kept up to date, supporting growth across the whole UK.”
“I ask hon. Members to reject the amendment. Clause 10 ensures that appropriate parliamentary scrutiny is applied to the use of existing delegated powers when they are used to amend retained direct EU legislation or section 4 of the European Union (Withdrawal) Act 2018 rights. It is this Government’s view that the appropriate procedure applied when amending retained direct EU legislation should be the same as the procedure applied to domestic secondary legislation. Any additional procedure, such as that proposed by the hon. Member, would be disproportionate given the type of legislation retained direct EU legislation is composed of.”
“I think we have covered the point of domestic law, law in Westminster and the role of Attorneys General. At the moment, we are forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. It is no longer appropriate for retained direct EU legislation to keep the status of primary legislation when most of it has not had anywhere close to the same level of UK parliamentary scrutiny. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.”
“Hon. Members are already aware that clause 10 modifies powers contained in other statutes that can be exercised to make secondary legislation amending former directly effective EU law. Schedule 1 makes related amendments with similar effect to alter the procedural requirements in relation to other powers to amend retained direct principal EU legislation in line with the changes made in clause 10 to schedule 8 of the European Union (Withdrawal) Act 2018. Schedule 1 also contains amendments that are consequential on the changes to the EU withdrawal Act in clause 10. I commend the clause to the Committee. Question put and agreed to. Clause 10 accordingly ordered to stand part of the Bill. Schedule 1 agreed to. Clause 11 Procedural requirements”
“In practice, they add a layer of complexity that makes it difficult to make amendments to legislation containing section 2(2) ECA provisions. Removing these requirements reflects the main purpose of this Bill, which is to take a new approach to retained EU law, removing the precedence given in UK law to law derived from the EU that is no longer considered fit for purpose.”
“Subsections (1) and (2) will ensure that when secondary legislation made under section 2(2) ECA is being amended or revoked using other delegated powers, the only parliamentary scrutiny requirements that will apply are those attached to the power being used. These delegated powers have their own parliamentary scrutiny procedure attached, which has been approved by Parliament, ensuring suitable scrutiny will continue to occur. It is imperative that additional scrutiny requirements are removed, because it is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys this privileged status. What is more, no tangible benefit has been identified as a result of these scrutiny requirements; as was mentioned, that was referenced in the evidence session by Dr Ruth Fox of the Hansard Society.”
“I ask hon. Members to reject the amendment. Unless I was in a different Committee Room, or on a different planet, I think Opposition Members have had every opportunity to raise their voices, because we have heard much from them today and on Tuesday, and we have had much scrutiny as well. Our constituents know exactly what we are doing because it is all noted in Hansard. The amendment would render clause 11 without purpose. Subsections (1) and (2) ensure the removal of additional parliamentary scrutiny requirements, established in the EU withdrawal Act, in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972.”
“The hon. Member is not being wholly honest. The level of scrutiny of any piece of legislation, not only in Committee but on the Floor of this House and the Floor of the other place, takes place for all items of legislation. The hon. Member will be well aware of the evidence session we had just a few weeks ago, when we had a number of people from environmental agencies who previously had Green credentials or who were previously Green or Lib Dem candidates. So it is not as if those voices are not heard.”
“We therefore seek to remove those requirements. This reflects the main purpose of the Bill—removing the precedence given in UK law to EU-derived law—which is no longer fit for purpose now that the UK has left the EU. I recommend that the clause stand part of the Bill. Question put, That the clause stand part of the Bill.”
“Our objective is not to remove power from Parliament. Our objective is to ensure that amendments or revocations made to subordinate legislation made under other existing powers receive the most appropriate level of parliamentary scrutiny. Fundamentally, people need to accept the Brexit vote and appreciate that we have to have sovereignty here. I do not think we are going to win that argument—we are too far apart. When the European Union (Withdrawal Agreement) Act 2020 was agreed, additional parliamentary scrutiny requirements were agreed in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972. It is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys that privileged status.”
“The overarching aim of the Bill is to define retained EU law as a legal category, and the power to restate such law must be viewed with that in mind. The hon. Member for Argyll and Bute said that he wants to help the process, even though he is fundamentally trying to block it. The power to restate has been designed to allow the Government to restate domestic law where it is considered appropriate for the UK in a post-Brexit setting. However, the resulting legislation will no longer be retained EU law, as subsection (3) makes clear. The restated legislation will be ordinary domestic UK legislation that is subject to traditional domestic rules of interpretation. In particular, the supremacy of EU law will no longer apply, and section 4 rights and the general principles of EU law will cease to be read into the legislation.”
“If I can make a bit of progress, I will give way later. The power will enable the Government to clarify, consolidate, codify and restate REUL to preserve the effect of the current law, while removing it from the category of REUL. It will be used selectively and is not a way to simply continue the broad concepts of EU law. Retained EU law was never intended to sit on the statute book indefinitely, although I believe that hon. Members wish it did. It is both constitutionally anomalous and politically challenging. Subsection (3) is therefore a crucial part of clause 12, and is necessary to ensure that the Government can deliver on the overarching aims of the Bill.”
“I did not hear the end of that question, but each Department will be in charge of the Bills in its portfolio. We have the Brexit opportunities department helping as well. I have already mentioned the processes in place to ensure that scrutiny happens, and how Ministers will work to ensure that we assimilate, amend or update.”
“I hope I am not failing to understand the question. As I mentioned, each of the REUL Bills is assigned to a Department, and it will be for the Ministers responsible for the REUL Bill to make a decision on whether they need to assimilate, repeal or update. I ask the hon. Member for Argyll and Bute to withdraw his amendment. I ask the Committee to accept the Government amendments. They are simple clarificatory amendments that ensure that the restatement powers in clauses 12 to 14 cannot be used to bring back EU law concepts, such as the principle of supremacy, or general principles that the Bill aims to sunset.”