European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019

Lord Hope of Craighead Excerpts

Monday 4th March 2019 Grand Committee

[Lord Hope of Craighead (CB)]

I am extremely grateful to the Minister for his very careful introduction to the background of the regulations. I should make clear that I have no criticism of the detail of the regulations themselves; I fully understand the reason for them and the explanation he has given has reassured me on all those points.

I have, however, two points on the provisions relating to Scotland. I am delighted to see the noble Baroness, Lady Goldie, here, because she will recall our discussions relating to what is now Section 8 of the Act, when I argued that consent of the Scottish Parliament should be required in the exercise of powers relating to Scotland in any way. As I recall it, she gave me an assurance that the Scottish Government would be consulted on any such amendments and, in the end, I was content with that. It is not in the legislation itself but, rather like the Sewel convention, it is part of the background to the exercise of the power to make regulations under the Act.

My first question is short and technical and relates to the provision in Part 1 of the schedule to which the Minister referred—the reference to the Scotland Act 1998 and the repeal of paragraph 28 of Schedule 8. The reason I refer to it is that it is laid down in Section 8(7) of the European Union (Withdrawal) Act 2018 that regulations under Section 8 may not do various things, among which is to,

“amend or repeal the Scotland Act”.

What is happening here is an amendment to the Scotland Act. That provision is qualified by stating that it does not apply if,

“the regulations are made by virtue of paragraph 21(b) of Schedule 7 to this Act”.

I notice that in the preamble to the regulations, reference is made to that paragraph.

My point is very short. I seek confirmation from the Minister that what we see in Part 1 of the schedule is an exercise of the power under paragraph 21(b) of the schedule and not under Section 8, because if it is under Section 8 standing alone, it would seem to be contrary to the prohibition in subsection (7). I think that is a relatively straightforward point, and I do not imagine that it will cause the Minister any concern.

The second point relates to Part 3 of these regulations which, as the noble Lord has pointed out, amends the Interpretation and Legislative Reform (Scotland) Act 2010. At first sight, it seems very odd that a UK Minister should be amending an Act of the Scottish Parliament; this very important Act was drafted with great care in Edinburgh. There is no doubt whatever that power to do this was given to Scottish Ministers under Schedule 2 of the withdrawal Act, because this is a devolved matter and there is no inhibition on their powers to deal with devolved legislation as they think fit. It seems that the Scottish Parliament is the natural place to make these amendments. One can understand that the position in Northern Ireland is different, because the Assembly is not sitting; it is obviously necessary to make provision by legislative means and this would seem the appropriate way to do it.

That is really a preamble to what we find set out in paragraph 10.2 of the Explanatory Memorandum, which says:

“We have consulted the Scottish Government, the Welsh Government and the Northern Irish Civil Service”.


It is the next sentence which troubles me. It says:

“In particular, we have consulted them on the amendments to the Interpretation Act (Northern Ireland) 1954 and the ILRA 2010; these amendments are made in Part 3 and 4 respectively of the instrument”.


That sentence is wrong, because the amendment in Part 3 is nothing to do with the Interpretation Act (Northern Ireland) 1954 or the IRLA 201; it is an amendment to the interpretation Act made by the Scottish Parliament. Therefore, that sentence does not make sense. The last sentence deals with something different: consultation relating to the technical and consequential repeals to the Scotland Act, which is what we saw in Part 1 of Schedule 2. My question really is this: what is the position in relation to the amendment of the Interpretation and Legislative Reform (Scotland) Act 2010 which we find in Part 3?

Following our long debates on the whole structure of the withdrawal Act, the noble Baroness, Lady Goldie, will understand my concern that the Scottish Parliament should be properly consulted on matters of this kind. I have to say that paragraph 10.2 of the Explanatory Memorandum does not make it clear. The second sentence is plainly incorrect and there is a gap, because it does not mention that Part 3 is an amendment of the Interpretation and Legislative Reform (Scotland) Act 2010. I ask the Minister for clarification as to what exactly is going on here and whether the consultation, which is fundamental to the exercise of the powers in relation to Scotland, has been properly carried out.

[Baroness Neville-Rolfe (Con)]

My Lords, unlike the distinguished noble and learned Lord, Lord Hope, I am not a lawyer and am unable to go into the detail that he has. I look forward to hearing the answers to his excellent questions. However, I have three simple questions that I would like to address to the Minister.

The first question is about impact. When this instrument was referred to us for debate, making it an affirmative instrument, the ESIC commented on the cumulative impact, saying that this meant that it should be debated here. As a consequence, we are all here today. There is no impact assessment and there is a statement from the Government saying that there is no need for one. Given the scale of the changes and the consequential effects, it seems that there could well be more than £5 million-worth of work for all the professional services and from companies in all four countries of the UK. I would be interested to hear more on that.

I also make the comment that, after EU exit, it will be much more difficult to find out what is going on in the EU, which is a problem when we are continuing to take European Union changes on board. We cannot even send representatives to the Committee of the Regions any longer, let alone the Council.

How will we keep business and citizens informed of what is going on in the EU? This is an issue which I hope the EU Select Committee, which I serve on, will look at as part of its report on the future bilateral institutional arrangements with the EU 27. This troubles me a bit because I am looking forward to post Brexit and how we will work alongside our friends in the EU 27, allow our citizens to continue to visit them, and our businesses to continue to operate.

My second question is a simple one. There has been no consultation except with the devolved Administrations. How do we know that the quite extensive changes that are being made in this Order are safe?

Finally, as my noble friend knows, I strongly support the Government’s approach to providing a new legal base for the post-Brexit world and for doing that in the orderly way he is pursuing. However, I would be interested in an update on the gaps that there may be on Brexit day, particularly in the not very likely event of no deal. It seems that this Order helps to deal with some of the gaps, but I would be interested to know how many more there may be that we should be worrying about.

--- Later in debate ---

I deal next with the question raised by the noble and learned Lord, Lord Hope. The restriction on using the correcting power in Section 8 to amend or repeal a devolution Act does not apply to the Government of Wales Act 1998, as this is not a protected Act. It is under Section 8, but the amendments to the Scotland Act 1998 fall within both exceptions under Section 8(7)(g). It is consequential from the repeal of Section 6 of the European Communities (Amendment) Act and the provisions within which it is being repealed, which modify another enactment. I can tell the noble Lord that we have consulted with the Scottish and Welsh Governments; we have written to Ministers about this directly and they have raised no concerns about our proposed course of action. As I said, the SI was drafted in consultation with the devolved Administrations, with particular regard to these consultation amendments. The technical consequential amendments to the Scotland Act 1998 and the Government of Wales Act 1988 were explicitly agreed with the devolved Administrations. As I said, we wrote to them; no concerns have been raised by Ministers either.

[Lord Hope of Craighead]

I am grateful to the Minister. Has he answered both of my points? I had a question about Part 1 of the Schedule, which he has indeed answered, but my other point was on what in Part 3 of the regulations themselves relates to the Interpretation and Legislative Reform (Scotland) Act 2010. I was pointing out a defect in Paragraph 10.2 of the Explanatory Memorandum. From what the Minister has said so far, I am not clear whether he accepts that there is a defect in the wording of that paragraph. However, if there is, would the Minister accept that it should be more clearly worded, to make it clear that the Act referred to in Part 3 was the subject of express consultation as well? Furthermore, although I think one cannot now alter the Explanatory Memorandum, could he undertake, when this measure is introduced to the House, to make it absolutely plain that that particular step was taken, just so that we do not have to go over this ground again in the House itself?

[Lord Callanan]

The noble and learned Lord makes a valid point. It could have been clearer. I will look at it again with lawyers and officials, and we will come back to it in the House. On the Scotland interpretation legislation, some amendments were made in the EU withdrawal Act; these regulations make the consequential provision that the Minister considers appropriate in consequence of this Act. This includes further amendments to the Interpretation and Legislative Reform (Scotland) Act 2010, drafted together with the Scottish Government. But I take his point about the Explanatory Memorandum; we will have a look at it, and perhaps I can write to him and come back to it when we consider it further in the House.

My noble friend Lady McIntosh and the noble Baroness, Lady Hayter, raised the comments by my honourable friend Chris Heaton-Harris, and the question of why we do not deal with the non-ambulatory references and/or retrospective deficiencies in the devolved interpretation legislation. The principal purpose of the Act is to provide a functioning statute book. However, the Government and Parliament recognised at the time that it would not be possible to make all the necessary legislative changes in a single piece of legislation. That is why the Act conferred on Ministers temporary powers to make secondary legislation to enable corrections to be made to laws which would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system would continue to function correctly outside the EU. I remember at the time we had extensive discussions about it. The noble Lord, Lord Beith, in particular was exercised about ambulatory references. There was discussion about the issue at the time.