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

Debated on Thursday 25 October 2018

The Committee consisted of the following Members:

Chair: Ms Karen Buck

† Badenoch, Mrs Kemi (Saffron Walden) (Con)

† Bradshaw, Mr Ben (Exeter) (Lab)

Efford, Clive (Eltham) (Lab)

† Elmore, Chris (Ogmore) (Lab)

† Graham, Richard (Gloucester) (Con)

† Grant, Peter (Glenrothes) (SNP)

† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)

† Heaton-Harris, Chris (Parliamentary Under-Secretary of State for Exiting the European Union)

† Hughes, Eddie (Walsall North) (Con)

† Jones, Mr Marcus (Nuneaton) (Con)

† Letwin, Sir Oliver (West Dorset) (Con)

† Pennycook, Matthew (Greenwich and Woolwich) (Lab)

† Percy, Andrew (Brigg and Goole) (Con)

Smith, Owen (Pontypridd) (Lab)

† Sobel, Alex (Leeds North West) (Lab/Co-op)

† Spencer, Mark (Comptroller of Her Majesty's Household)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

Hannah Bryce, Mike Winter, Committee Clerks

† attended the Committee

The following also attended (Standing Order No. 118(2)):

Blomfield, Paul (Sheffield Central) (Lab)

Tenth Delegated Legislation Committee

Thursday 25 October 2018

[Ms Karen Buck in the Chair]

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

I beg to move,

That the Committee has considered the draft European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018.

It is a huge pleasure to be here with you in the Chair, Ms Buck. This is my first such experience as Parliamentary Under-Secretary at the Department for Exiting the European Union, so I hope you will treat me gently. It is a particular pleasure to introduce the regulations, because one of my first acts on taking up my role on 9 July was signing them.

The regulations are one of three statutory instruments laid by the Department before the summer, all made under the consequential power in the European Union (Withdrawal) Act 2018. The Government have always been clear that the consequential power is a standard power, commonplace in legislation, that it is inherently limited and that its main expected use is for matters of a technical nature. All three statutory instruments laid under the power fall into that category.

I draw that to the Committee’s attention because, on Second Reading of the European Union (Withdrawal) Bill, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) suggested he had

“never come across such a wide power”—[Official Report, 7 September 2017; Vol. 628, c. 360]

as the consequential power under the Bill. I hope hon. Members will see that concerns about the use of the power were perhaps a touch overblown. I draw the Committee’s attention to the fact that, although the negative procedure could legally have been used for the regulations, we opted to follow the affirmative procedure in this case, so that we are not amending legislation of a constitutional character without providing the opportunity for parliamentary debate.

Put simply, the regulations help lay the groundwork for our exit from the European Union and ensure that the UK’s legal system will continue to function effectively on exit day. They are another step in our Brexit preparations, designed to support legal certainty and continuity as we leave the European Union.

To give some detail, the regulations repeal legislation that has become redundant in consequence of the repeal of parts of the European Union Act 2011 and the European Union (Amendment) Act 2008. On 4 July, my hon. Friend the Member for Wycombe (Mr Baker)—my predecessor at the Department—signed the commencement regulations that repealed section 5 of the 2008 Act and sections 1 to 13 of the 2011 Act. Those laws provided for particular procedures for the approval or ratification of certain EU decisions or treaty changes that would result in the transfer of power from the United Kingdom to the European Union, including the so-called referendum lock. Such provisions are now redundant in the context of our leaving the European Union.

As a consequence of those repeals, legislation that approved matters in accordance with those Acts has also become redundant. Affected legislation includes the European Union (Approvals) Act 2017 as well as parts of the European Union (Croatian Accession and Irish Protocol) Act 2013 and the Constitutional Reform and Governance Act 2010. Without these regulations, that legislation would continue to sit meaninglessly on our statute book; by repealing it, we ensure that the statute book remains clear and therefore more effective. Members should note, however, that the repeals in the regulations do not have any effect on the validity of anything done in relation to EU decisions or treaty changes approved by them.

The regulations also make consequential amendments to interpretive legislation to reflect the introduction of a new category of law—retained direct EU law—into the UK’s legal system on exit day. Amended legislation includes the Statutory Instruments Act 1946 and the Statutory Rules (Northern Ireland) Order 1979, which set out the rules on making statutory instruments—or, in the case of Northern Ireland, statutory rules—under powers contained in primary legislation. In order to provide certainty after exit, the regulations amend that legislation to make it clear that the normal rules on making statutory instruments or statutory rules apply when secondary legislation is made under powers contained in retained direct EU legislation.

The regulations amend the Laying of Documents before Parliament (Interpretation) Act 1948 to ensure that references to laying of documents before Parliament under retained direct EU law are understood to refer to the taking of specific actions in accordance with the relevant Standing Order, Sessional Order or other direction or practice observed by each House of Parliament, as prescribed in the Act. That approach is in line with that already taken in the EU (Withdrawal) Act for the purposes of Scotland’s interpretive legislation, as set out in schedule 8 to that Act. The regulations therefore ensure clarity and consistency for the whole of the UK statute book.

I hope that all members of the Committee will agree that the regulations perform a small but worthwhile role in our preparations to leave the European Union and demonstrate the Government’s commitment to ensuring certainty and continuity as we do so.

May I, too, say that it is an absolute pleasure to serve under your chairmanship, Ms Buck?

The regulations are uncontroversial, so we do not intend to divide the Committee and I do not intend to detain us for very long, but I would like to probe the Minister on a number of points in the hope that he may be able to offer some answers.

It is an essential feature of the rule of law that legislation is not only clear but can be understood by those who are bound by it. Given that principle, will the Minister confirm plainly for the record that the purpose of schedule 1 to the regulations, which repeals provisions contained in two Acts of Parliament and repeals a third in its entirety, is only to tidy up redundant references to approval procedures for certain EU treaties, and that it therefore has no bearing, either directly or indirectly, on how any future treaty or treaties with the European Union will be approved and ratified? On a related point, can he confirm that any withdrawal agreement, subject to the additional procedures for approval that have been agreed, will still have to be laid before Parliament under the terms of the Constitutional Reform and Governance Act 2010 as a matter of law?

Turning to the various issues raised by schedule 2 to the regulations, could the Minister give the Committee a sense of why the Government feel that they have to legislate in this way and whether it is a direct response to the concerns set out by the Lords Delegated Powers and Regulatory Reform Committee? Its main concern was that clause 8 of the EU (Withdrawal) Act allows for tertiary lawmaking powers currently exercised at EU level to be reassigned to a domestic Government agency or other public body, say the Food Standards Agency or the Environment Agency, and for that agency or body to then make changes to the law in the same way that a Minister would, but without those changes being approved by this House by means of a statutory instrument pursuant to an Act of Parliament. If that is the reason for legislating in this way, will the Minister confirm that the schedule 2 is nothing more than, as he put it, a means of tidying up to ensure consistency and clarity and to close that loophole so that lawmaking powers contained in retained direct EU legislation will henceforth be subject to the same forms of domestic scrutiny as lawmaking by SI under Acts of Parliament?

I will take this opportunity to press the Minister on the wider issue of the progress that the Government have made to date in their legislative preparations for exit day. We all know that we will need approximately 800 to 1,000 SIs to be passed to ensure that we have a functioning statute book on 29 March next year—assuming, that is, that the Government do not use the forthcoming withdrawal agreement and implementation Bill to repeal the fixed exit day that they themselves inserted into the European Union (Withdrawal) Act. A recent report by the Hansard Society found that, so far, only 71 SIs have been laid before Parliament and that even processing SIs at the pace we have seen to date appears to be creating problems, with 20% of the SIs put before the European Statutory Instruments Committee found to contain some form, minor or otherwise, of technical deficiency. Given the importance of processing the hundreds of SIs necessary for an orderly exit, will the Minister give the Committee a sense of precisely how the Government are going to ensure over the coming weeks that all the SIs necessary will have been passed before exit day?

I can be quite brief in my answer to the three specific questions about schedule 1, withdrawal agreements and the purpose of schedule 2. The answer to all three questions is yes.

The hon. Gentleman also asked about the statutory instruments needed so that we are ready for exit day. Hon. Members will have seen that the Fisheries Bill has been introduced today, which is a big piece of exit legislation. The Agriculture Bill has also been introduced, and more Bills will come forward. The SI programme flows from legislation, so it was always going to be the case that there would be more SIs at this stage of proceedings than there have been in the previous two years. We have a manageable programme of SIs. It does mean that parliamentarians will be sat in Committees like this scrutinising them, but that is our role—

I understand that my hon. Friend the Member for Brigg and Goole has volunteered to sit on pretty much every Delegated Legislation Committee available. There is a programme, and my Department is co-ordinating an overview.

My hon. Friend makes a jocular remark, but will he expand on the Government’s decision to use the affirmative procedure for this order? There is a sifting Committee, which we agreed as a result of a long discussion. Part of the reason for creating it was to make sure that important things are properly discussed, but it was partly also to make sure that very unimportant things are not. We are clearly all going to go completely mad—if we are not already so—if we have to deal with every totally uncontroversial and uninteresting piece of crypto-constitutional legislation conducted through statutory instruments in this form. Will he therefore give us an undertaking that really unimportant SIs will be put before the sifting Committee, so that it can decide whether they should be dealt with by this method or by the negative procedure?

If only my hon. Friend the Member for Stone (Sir William Cash) were present to answer that. I can give my right hon. Friend that assurance. Before the Committee stands a very junior Minister who was very keen to ensure that he did not make a mistake in the laying of his first statutory instrument. However, that is exactly the purpose of the sifting Committee.

To answer a question that the hon. Member for Greenwich and Woolwich asked, I have had conversations with the chairs of the sifting Committees in the Lords and the Commons to give them a rough idea of the Government’s plans. My Department will absolutely co-ordinate the flow of SIs so that we have a functioning statute book as we leave the European Union.

Question put and agreed to.

Committee rose.