European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018

Baroness Ludford Excerpts

Wednesday 24th October 2018 Grand Committee

[Lord Callanan]

This legislation is being repealed in consequence of the repeal of the 2008 and 2011 Acts, which has rendered them redundant and no longer necessary. Removing this legislation from our statute book is consistent with our goals of ensuring an effective, functioning statute book on exit day by providing clarity and avoiding confusion by making reference to legislation that no longer exists within our statute book. For reassurance, I make it clear that the repeal of the legislation that approved matters in accordance with the 2008 and 2011 Acts does not have any effect on the validity of anything done in relation to those decisions or treaty changes approved by them.

Secondly, these regulations also make consequential amendments to the Statutory Instruments Act 1946, the Laying of Documents before Parliament (Interpretation) Act 1948, and the Statutory Rules (Northern Ireland) Order 1979, to reflect the introduction of a new category of law, called “retained direct EU law”, into the UK’s legal system. Retained direct EU law is the directly applicable EU law that existed immediately before exit day that will be converted into UK law on exit day by the European Union (Withdrawal) Act.

The Statutory Instruments Act established a number of rules that apply when making SIs, and similarly, the Statutory Rules (Northern Ireland) Order applies when making statutory rules—the Northern Irish equivalent—under powers in primary legislation. To provide certainty, it is important that we ensure that these same rules apply to instruments made under powers in retained direct EU legislation so that it is clear what procedures must be followed to ensure that instruments made under powers in retained direct EU legislation are properly made.

These regulations therefore make consequential amendments to the Statutory Instruments Act 1946 and the Statutory Rules (Northern Ireland) Order 1979 to make it clear that the normal rules apply to making statutory instruments and statutory rules under powers in retained direct EU law. This will create certainty about the proper procedures to be followed where such powers are used in the future and will assist Parliament in considering the use of such powers.

Similar provision has already been made to deal with Scottish statutory instruments made under retained direct EU legislation through the amendments to the Interpretation and Legislative Reform (Scotland) Act in Schedule 8 to the European Union (Withdrawal) Act. Therefore, these regulations take an approach consistent for the purposes of England, Wales and Northern Ireland with that taken for Scotland by the Act itself.

The Laying of Documents before Parliament (Interpretation) Act established the rules for laying documents before Parliament where an Act or piece of secondary legislation required that documents be laid before Parliament. Similarly, therefore, the consequential amendments made to the Laying of Documents before Parliament (Interpretation) Act will ensure that the same rules on laying documents before Parliament apply where retained direct EU legislation requires those documents to be laid before Parliament.

Given that these regulations amend primary legislation that is of constitutional importance, we thought it would be appropriate to allow Parliament the opportunity to debate these regulations through the use of an affirmative instrument. However, I hope that after my explanation noble Lords will agree that this is a sensible use of the consequential power, and that what we are seeking is appropriate to ensure continuity as a new category of law is introduced into our legal system on exit.

[Baroness Ludford (LD)]

I thank the Minister for his explanation, which, in so far as is possible on the subject, was admirably straightforward. He is quite right, as he said at the beginning, that there was—and will continue to be—a lot of controversy over the ministerial powers in the European Union (Withdrawal) Act. This one is perhaps not yet of mountainous dimensions in terms of controversy, but I have some questions.

First, no doubt simply because of my unfamiliarity with the field of secondary legislation, can the Minister remind me whether there are any limits on the ability of SIs to amend primary legislation under the Act? I have entirely forgotten—perhaps mercifully—a lot of the debates on the Bill. The regulations amend primary legislation. I would welcome a reminder of whether there are any limits on that.

My second question is about the European Union (Croatian Accession and Irish Protocol) Act 2013. I appreciate that the implementation of those measures—the accession of Croatia and the Irish protocol to the Lisbon treaty—is not affected by these regulations, but what will happen to their implementation when and if the ECA is repealed? How will they continue to be implemented? They have been implemented through the European Communities Act by making them EU treaties for the purposes of that Act. Paragraph 2.7 of the Explanatory Memorandum rightly states that their,

“implementation is unaffected by these regulations”,

but that prompted me to wonder what happens when and if the ECA is repealed. I would be grateful to learn how they carry on being in force, or will that matter be dealt with during the standstill transition by repealing a lot of the European Union (Withdrawal) Act in the EU withdrawal agreement Bill? I hope that I do not stray too far, but this subject is quite complicated.

Similar issues arise in relation to the decisions mentioned in paragraph 2.11. I remember spending time during the passage of the European Union (Approvals) Act 2017 speaking about Albania and Serbia being observers in the work of the fundamental rights agency—I cannot remember whether I referred also to the Canada competition laws; it was in the same Act, so I must have done. These approvals are no longer necessary if Sections 1 to 13 of the European Union Act 2011 are being abolished, so the 2017 Act becomes redundant. The Explanatory Memorandum states:

“The repeal of the Act approving those decisions has no effect on the validity of those decisions or anything done in relation to those decisions”.


So if we repeal the European Union (Approvals) Act 2017, paragraph 2.11 of the memorandum states that such repeal,

“has no effect on the validity of those decisions”,

which is interesting. How are they still valid? The Government are repealing the Act which approved the decisions about Albania and Serbia being observers in the fundamental rights agency, et cetera, but they state that it has no effect on the validity of the decisions. On what basis, then, do those decisions approving Albania and Serbia continue to be valid?

That takes me back to my previous point. That statement implies that we want those decisions to continue to be valid. If we want to continue the validity of the Serbian and Albanian observership in the fundamental rights agency, I presume that we want to continue the validity of the recognition of Croatian accession and the Irish protocol. I am wondering whether my question about how they get knocked out by the repeal of the ECA is correct, because presumably they are on a similar level. If the Albania and Serbia observerships are to remain valid—which they would be in a standstill transition anyway—presumably that also applies to the Croatian accession, et cetera. So how do they continue being valid, and if they do, will they still be valid after 29 March? I apologise if I am just being dense.

Then there is the question about the Statutory Instruments Act 1946 applying. Obviously, that is welcome. It is interesting that it is being done now. Perhaps the Minister could remind me why the Government did not agree to incorporate this in the EU withdrawal Act. Our attention is drawn to the 12th report of the Delegated Powers and Regulatory Reform Committee, published last February. One of the things it objected to was tertiary legislation—the ability for Ministers or other bodies to make further subordinate legislation without there having to be any parliamentary procedure or any requirement for it to be made by statutory instrument. The committee wanted all tertiary legislation to be subject to the same parliamentary control and time limits as are applicable to secondary legislation. If I understand this correctly, it talks about the Statutory Instruments Act 1946 applying to SIs. Does it apply? The DPRRC report also referred to tertiary legislation which is not made in statutory instruments. Is this extension of the 1946 Act limited to what is made under statutory instruments or does it meet the entire objection in the DPRRC report of last February? I hope the question is clear, because I am confused about why the Government are doing this now and did not do it in the Bill.

I am also trying to understand the scope of this welcome reform—whether further transparency and normal rules of scrutiny should apply. The answer would appear to be only where that secondary legislation is in statutory instruments, and not if it was made by some new agency, for instance. In paragraph 2.12, the Explanatory Memorandum talks about the ability to subdelegate regulations made under certain withdrawal Act powers—tertiary legislation made by an agency, for instance. It says that,

“it is important that the Statutory Instruments Act 1946 is amended to cover these scenarios”,

so you would think that meant all tertiary legislation, but then it goes on to say,

“so that there is certainty about the proper procedure for making SIs under such powers”.

I am dependent on the report from last February to understand that not all tertiary legislation is made in SIs. I suppose it makes sense, but I am a novice in secondary legislation. What is the extent of the concession—the welcome reform—that the Government are proposing for the extension of the Statutory Instruments Act 1946? Does it apply to all tertiary legislation, including that not made under SIs or by Ministers but by other bodies?

I think that covers all my questions. I hope that I have not been too confusing and that the Minister is able to answer my questions.