European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020

Baroness Hayter of Kentish Town Excerpts

Monday 30th November 2020 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this has been an interesting debate on a somewhat technical range of issues. I am not going to pretend that I understand all of them, but a particularly interesting one was raised by the noble Baroness, Lady McIntosh, concerning the word “gloss”. I have seen the word used in the explanatory notes to a number of other orders and I assumed that it was a legal term. However, if the noble Baroness, who is legally trained, does not know the answer, it clearly is not in common legal use. As the Minister has now had time to find out about it, perhaps he could enlighten us.

Part of all this work arises from the completely misplaced idea that a system of law-making that we have had for almost half a century can suddenly be replaced by a domestic equivalent, with none of the time, debate, consultation and thought which normally goes into it. In fact, the Minister himself gave it away when he said that we have already had 650 SIs. In a sense, what we are doing is concertinaing into a couple of years what took almost 50 years to develop across the EU.

This also arises in part from the Government’s early denial that any implementation period would be needed. It was the Labour Party that first said we would need something like that, and to begin with there was resistance. I am grateful that the Government understood at the time that a period of adjustment was needed. The problem I have with “implementation”—or “IP completion date”, as it now is—is that it is still the wrong term. We are not implementing anything because we do not have a deal yet. We are actually still at the end of leaving: we are not implementing new rules because we do not know what the new arrangement is yet. It may be a question of semantics, but the word “implementation” is a bit odd and “transition” would be better. We are a month away from the end of the transition and we still have to sort out, as this provision is, the end of the withdrawal legislation.

As we have heard, this SI incorporates retained direct EU legislation or the relevant separation agreements into the Interpretation Act 1978 and its equivalent in the devolved Authorities. As the Minister said, it amends the Interpretation and Legislative Reform (Scotland) Act 2010, the Interpretation Act (Northern Ireland) 1954 and the Legislation (Wales) Act 2019. I think the Minister said that each of the devolved Authorities was “fully engaged” in the preparation of the regulations. He did not say whether they were content with them. Will he confirm that they were not only involved but happy that we are proceeding with the regulations today?

I am sure that the answer is yes, but will he also let us know whether the Law Society—

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am sure that the answer to this question is yes, but can the Minister confirm that, in addition to the devolved authorities, organisations such as the Law Society and the Bar Council, and European law specialists in particular, have been consulted in the preparation of these regulations?

There is also the issue of using secondary legislation to amend primary legislation: not just the Interpretation Act 1978 but also parts of the European Union (Withdrawal) Act 2018. This is the issue the noble Lord, Lord Thomas, raised, in a way. Can the Minister outline what assessment has been made of the effect on accountability and scrutiny of amending the withdrawal agreement by statutory instrument? Is he really content that that is a good way to proceed? I think he knows all the sensitives in the House about secondary legislation, so he will understand the question.

The Minister will also know of the concerns, touched on by the noble Lord, Lord Thomas, within and beyond the legal sector about the uncertainty that clients, lawyers and courts will face after January. One example is that, without the Lugano framework, we will revert to the national laws of each individual country to decide which court has jurisdiction over a legal issue and whether a judgment will be enforced. This is obviously key in family, bankruptcy, companies and transport law, and no doubt much more besides. Can the Minister update the Committee—if not now, perhaps he will write—on this and similar issues that the legal profession and its clients will face from January? In particular, can he update us on the Lugano framework? I have rather lost track of where we are on signing up to that; an update would be useful.

Just from looking at these regulations, it seems that the complexity of statutory instruments such as this will increase legal uncertainty. Perhaps the Minister could provide some assurance that, even if I do not understand every technical word, every lawyer in the land will.