Considered in Grand Committee
My Lords, I am grateful for the opportunity to be here today to discuss these regulations. They are part of the Government’s wider programme of secondary legislation before exit day to ensure that the UK’s legal system continues to function effectively when we leave the European Union.
This instrument is being made using the consequential and correcting powers in the European Union (Withdrawal) Act 2018. The changes proposed are of a technical nature and do not represent substantive policy changes. They are part of the ongoing work of my department in laying the groundwork for the UK’s withdrawal.
The regulations were initially laid in draft before the sifting committees as a proposed negative instrument. Indeed, the Secondary Legislation Scrutiny Committee of your Lordships’ House agreed with my department’s assessment that the negative procedure was appropriate in this case. However, the European Statutory Instruments Committee in the other place recommended that the regulations should be debated under the affirmative procedure. It concluded that,
“the cumulative impact of the amendments is such that the additional safeguard of affirmative resolution is appropriate”.
As is usual, my department was content to accept the recommendation of the committee, and accordingly we are gathered here today to debate the regulations under the affirmative procedure.
These draft regulations have three primary objectives. The first is to make provision for how certain cross-references in UK law to European Union legislation are to be read following exit day. The regulations also make consequential amendments to domestic interpretation legislation to ensure that the rules and definitions within them apply, as appropriate, to the new category of law that will be created on exit day—namely, retained EU law. Finally, they repeal and revoke various pieces of primary and secondary legislation which were made to enable the UK to fulfil its EU obligations. These will become redundant on exit day as a result of the repeal of the European Communities Act 1972 and the UK’s withdrawal from the EU. I shall now give noble Lords more detail on these three objectives.
First, I shall address the provisions on cross-references to EU legislation. This is quite a technical area, so I will take a moment to go through it carefully and in detail. UK legislation which implements EU law, and EU instruments which will become part of retained EU law, contain many cross-references to EU instruments. There are two types of cross-references to EU instruments: ambulatory and non-ambulatory.
An ambulatory reference is a reference to an EU instrument as amended from time to time, which means that the reference will automatically update when the EU instrument is amended. The EU (Withdrawal) Act 2018 sets out what happens with existing ambulatory references after exit. A non-ambulatory reference is a reference to the EU instrument in the form that it was in when the reference was made. It does not automatically update when the legislation to which it refers is amended and therefore it would need to be manually updated later.
The European Union (Withdrawal) Act 2018 does not make provision for how non-ambulatory references to EU legislation made up to the point immediately before exit day are to be read. This is being done through these regulations. This issue is quite technical and the regulations need to cover several different scenarios. For example, they need to make sure that references to EU instruments that will be onshored on exit day are read as the domestic version where appropriate. However, this is only if they are up to date. If the reference is not up to date on exit day, it will remain a reference to the version of the EU instrument that was in place when the reference was originally made. It would therefore not reflect amendments made by the EU since the reference was made.
The other complicating factor is that some references are to EU instruments that will be onshored—that is to say will form part of domestic law on exit day—and some are references to EU instruments, such as directives, that will not be onshored. They need to be treated differently. These regulations also provide that cross-references to EU legislation, which forms part of retained direct EU legislation, created on or after exit day are to be read as references to the retained version of the EU legislation. This requires changes to the Interpretation Act 1978, as well as to the corresponding interpretation legislation for Scotland and Northern Ireland.
As I have already mentioned, the second objective of these regulations is to ensure that the rules and definitions within domestic interpretation legislation apply, as appropriate, to that retained EU law. This is the new body of domestic law created by the European Union (Withdrawal) Act 2018, which we had so much fun debating. This requires consequential amendments to the interpretation legislation for Scotland and Northern Ireland in line with the changes made to the Interpretation Act 1978 by the European Union (Withdrawal) Act 2018. For example, Part 3 of these regulations amends the Interpretation and Legislative Reform (Scotland) Act 2010 by inserting the new EU-exit related definitions, which stem from the European Union (Withdrawal) Act 2018. It also amends the definition of “enactment” to include retained direct EU legislation so that the interpretation rules will work post exit.
Part 4 makes similar provision for Northern Ireland through amending the Interpretation Act (Northern Ireland) 1954. It inserts the definitions relating to EU exit and updates the definition of “statutory provision” to include retained direct EU legislation. These regulations also ensure that the normal rules on laying documents before the Northern Ireland Assembly apply where a duty to lay documents is contained in a piece of retained direct EU legislation.
The third objective of these regulations is to repeal and revoke redundant pieces of, and provisions within, domestic primary and secondary legislation which implement EU law obligations. These pieces of legislation will become redundant as a result of the repeal of the European Communities Act 1972 and the UK’s withdrawal. The precise nature of the repeals and revocations is explained in detail in the Explanatory Memorandum to these regulations in paragraphs 7.11 to 7.27. I hope that these explanations assure noble Lords that these repeals and revocations are necessary to ensure that the UK’s statute book remains coherent and the UK’s legal system continues to function effectively. However, I shall provide some further explanation of particular repeals and revocations in the hope that it is helpful.
A number of Acts which gave effect in UK law to the accession treaties concerning member states’ accession to the EU are now being repealed. This is because these Acts will become redundant upon the UK’s withdrawal from the EU. Without these repeals, these pieces of legislation would sit meaninglessly on our statute book. We are repealing them, so that the statute book remains clear and effective. Another aspect of the repeals that might be of interest to noble Lords is the repeal of the European Communities (Amendments) Act 1993. In particular, the repeal of Section 6 of that Act requires consequential amendments to be made to other pieces of legislation. Section 6 determines who is eligible to be a member of the UK’s delegation to the European Committee of the Regions, an advisory body representing Europe’s regional and local authorities.
When the UK ceases to be a member state, it will no longer be entitled to send a delegation to represent the UK at the Committee of the Regions. Section 6 of the 1993 Act therefore becomes redundant on exit day and so is being repealed. Section 6 of the 1993 Act has been amended multiple times through primary and secondary legislation in order to reflect changes that have occurred to devolution and local government arrangements. Legislation that has amended Section 6 will of course also become redundant and so is being repealed or revoked. Let me give an example. An amending provision is contained in Schedule 8 to the Scotland Act 1998, which simply added the words,
“a member of the Scottish Parliament”,
to Section 6 of the 1993 Act to show that a member of the Scottish Parliament could form part of the UK’s delegation to the Committee of the Regions.
Finally, I draw noble Lords’ attention to the transitional and savings provisions contained in the regulations in relation to the repeals. Under the European Parliamentary Elections Acts 1978 and 2002, treaties that increase the powers of the European Parliament cannot be ratified unless approved by an Act of Parliament. An example can be found in the European Communities (Amendment) Act 1986, which approved the Single European Act. The transitional and savings provisions make clear that the repeal of provisions containing such approvals have no effect on the validity of the treaties or on anything done in relation to those treaties.
The Government have engaged with the Scottish Government, the Welsh Government and the Northern Irish Civil Service on the amendments proposed in the regulations, and no concerns were raised about the proposed amendments. Following the recommendation of the European Statutory Instruments Committee that the regulations should be debated, my department considered it appropriate to present these regulations for noble Lords to scrutinise today. I hope that your Lordships will agree that the draft regulations are an important part of the UK Government’s preparations for withdrawal from the EU. The principal purpose is to provide a functioning statute book on the day the UK leaves the EU.
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.
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.
My Lords, I add my thanks to my noble friend for bringing this statutory instrument before us today. I associate myself entirely with the comments of the noble and learned Lord, Lord Hope of Craighead, particularly on Part 3. I am minded to ask whether adopting this is not really the preserve of the Scottish Parliament. I remember only too well the long hours we spent discussing Section 8 and I hope that that is not something that will be repeated in later statutory instruments when it should be the preserve of the devolved Parliaments. The noble and learned Lord entirely concentrated his comments on the fact that the Northern Ireland Assembly is not sitting, and I wonder whether that is an issue which it is appropriate to bring before the Committee.
Page 1 of the Explanatory Memorandum refers to “non-ambulatory references”, a rather curious expression repeated by the Minister which I do not recall from the Act itself. They are references which are not automatically updated. The memorandum goes on to state in paragraph 2.5:
“These repeals and revocations are needed to remove redundant provisions of domestic legislation”.
This was identified when it was discussed in the equivalent Committee in the other place by our honourable friend Chris Heaton-Harris, the Parliamentary Under-Secretary of State who responded to questions raised by Matthew Pennycook from the Opposition Benches. The second question asked why no references are in fact made to non-ambulatory references in the European Union (Withdrawal) Act itself or indeed in the debate. What my honourable friend Chris Heaton-Harris, as the Parliamentary Under-Secretary of State, said in reply was quite astounding. I should like to quote him:
“I honestly do not know what my Department might have been thinking at that time. However, I believe that we have tried to go through this process in the best possible way, so I guess we are heading towards the second of the hon. Gentleman’s suggested answers to his own question, rather than the first. We have gone through a quite legitimate tidying-up exercise”. ”—[Official Report, Commons, Delegated Legislation Committee, 21/2/19; col. 6.]
The question to my noble friend the Minister is: was “non-ambulatory references” omitted from the debate by accident or by design? Can he assure the House that this will not recur, that we might not expect any other omissions in the short time available before Brexit day?
I do not know if it was the Minister’s own expression or whether “we are gathered together” was written for him, but I was expecting something a little more exciting after that. I congratulate him for getting through yet another speech, given that his voice is not quite back to its normal timbre. He is also employing what for me is another new phrase, “onshored”. Maybe the people behind him can give us a little clue afterwards about the difference between retained, repatriated and onshored and whether there are any more new expressions coming.
Like other noble Lords, I thank the Minister for trying to make sense of something quite complicated but I am afraid that I have a few questions nevertheless. First, the 2018 Act ends the supremacy of EU law over on UK law on exit day. It was there by virtue of the 1972 Act—as paragraph 6.2 of the Explanatory Memorandum reminds us. It ends because of the repeal of, I think, Clause 1 of the 1972 Act. However, assuming that we get a deal, and that this includes a transition period, some of this supremacy might have to continue through the transition period as we will continue to abide by EU rules then. How and when will the 2018 Act be amended to allow for this?
Secondly, paragraph 7.19 of the Explanatory Memorandum refers to the regulations amending Section 6 of the 1993 Act—to which the Minister referred—the provisions as to who is eligible to participate in the Committee of the Regions. Can the Minister let me know whether that is the only statutory change that will be required for us no longer to be on the committee? I have not noticed any reference to the committee elsewhere and as this refers only to eligibility and not, for example, selection, role, time limits or anything else about our membership, in domestic law or anywhere else. Can the Minister confirm whether anything else needs amending to make sure nothing else is left that would send people to that committee? Although not mentioned in these regulations, can the Minister also let us know whether any legislative changes about appointment, eligibility or anything else are needed with regard to our membership of what in my day was called the Economic and Social Committee, but which I know has a different name now?
My third question concerns the fact that the regulations now make good the absence, as we have just heard, from the 2018 Act of consideration of non-ambulatory EU regulations. This question may fall to the Minister’s noble friend Lady Goldie, because I think she dealt with this when we took the Bill through. There was quite a discussion about clinical trials at one point. We were concerned that, while the EU rules about clinical trials have been changed, they will not be operative—I think that is the word—on exit day. We were very worried, therefore, that because we would be taking over what was in operation on exit day, these new rules would apply across the rest of the EU after exit day but we would be stuck with the old ones, with enormous implications for whether we could participate in clinical trials that particularly affect orphan drugs and childhood illnesses. That lack of carryover was of concern. I am worried, although I think that particular issue got sorted by some clever intervention, about whether the introduction of these regulations covering non-ambulatory regulations addresses issues where things change over time and are different after exit day in the way we would want them to. Certainly the feeling was that we wanted to stay absolutely in line with EU regulations. I could not quite understand the difference between ambulatory and non-ambulatory sufficiently to know the answer to that.
My fourth question was raised by the noble Baroness, Lady McIntosh, and is about what happened when these regulations were dealt with in the Commons, where the Under-Secretary of State admitted that he did not know what his department might have been thinking. He has a good excuse: he did not do the Bill, because he was not there at the time, but this Minister, of course, did, so he might have a little more knowledge and has had advance notice since 21 February about why such references were overlooked. The noble Baroness, Lady McIntosh, asked whether it was by accident or design, and it would be useful to know. If it was by accident, we understand that, but it would be good to know whether there are similar examples. If it was by design, it would be interesting to know why it did not happen at the time.
Finally, I have a question which is not specifically on these regulations. To date we note that the Prime Minister’s spokesperson, instead of saying, “We will leave on 29 March” said only, “We want to leave on that day and we will work to try to achieve that”. Of course, as we know, the Prime Minister confirmed last week that, should MPs mandate her to seek an extension to Article 50 next week, legislation will be brought forward to amend the EU withdrawal Act’s definition of exit day. Any such regulation to amend exit day would be subject to an affirmative procedure and therefore require pretty swift consideration in both Houses. Can the Minister give us a little advance notice, as I am sure they are already preparing for that, about when an instrument would be laid, given the requirement on the length of time between being laid and being debated? Since it is already 4 March, I think he will understand why I pose this question.
First, I thank all noble Lords for their contributions. I shall deal first with the last question of the noble Baroness, Lady Hayter, and commend her for her ingenuity in bringing the subject up in this Committee. As she knows, under the EU withdrawal Act there is a provision for the Government to amend exit day by use of secondary legislation powers. There has been no decision to do that yet. We await details of the various votes that will happen next week, but we remain confident that we will be able to deliver a withdrawal agreement that the House of Commons can vote for with enthusiasm and therefore we will not need to table any references or any further secondary legislation, but if it is required, the ability is there. That is set out in the EU withdrawal Act. That is as far as I want to go with that at the moment in this forum.
As I set out, this SI makes amendments to legislation using the consequential and correcting powers in the European Union (Withdrawal) Act 2018 to prepare the UK for withdrawal from the EU. The purpose of the instrument is to ensure that the statute book accommodates retained EU law. The instrument will make clear how certain cross-references to EU legislation are to be read after exit day and make amendments to the interpretation legislation for Scotland and Northern Ireland to ensure that it adequately references and incorporates retained EU law.
The instrument will also repeal and revoke pieces of primary and secondary legislation that were made domestically to enable the UK to fulfil its EU obligations, but that will become redundant as a consequence of the repeal of the European Communities Act and the UK’s withdrawal from the EU.
Let me deal with a number of the questions raised. The noble Baroness, Lady Hayter, asked about the Committee of the Regions and whether this will be the only statutory instrument-making legislative amendment relating to the UK’s participation in the committee. As I have already mentioned, these regulations repeal the provision which determines who is eligible to be sent to participate on the UK’s behalf at the committee. When the UK withdraws from the EU, it will no longer be entitled to send a delegation to represent the UK at the committee. My department laid the European Institutions and Consular Protection (Amendment etc.) (EU Exit) Regulations 2018, which made amendments and revocations to address deficiencies in respect of retained direct EU legislation that relates to the functioning of institutions and bodies of the EU and the application of its rules in EU legislation. Seven of the decisions that were revoked by those regulations relate in part to the Committee of the Regions. That is because the decisions are deficient because the UK will not form a part of the institutions to which the provisions relate after exit.
Was one of those institutions the Economic and Social Committee? The noble Baroness, Lady Neville-Rolfe, asked about the Committee of the Regions and I think I have responded to her point. She also asked about how we will ensure representation and consultation on issues going forward. That is a live discussion. We are also discussing with the devolved Administrations how they can feed in to EU and UK policy-making during the implementation period because during the implementation period we will not have direct representation in any of the institutions that we have been talking about, the European Parliament or the Council, and we will have no UK Commissioner. As she is aware, in the withdrawal Act there is provision for governance arrangements. It is a joint committee that will comprise a number of committees and sub-committees. We are talking further to the EU about how that will work in practice. There are live discussions with UKRep about how it can continue to influence the legislative process in Europe because it will have to switch from being a body that directly represents us in the various fora to being one which seeks to influence by other methods. There is a great deal of policy-making work going on about how we can do that and how Parliament will continue to be consulted and represented in decisions. As I said earlier, we are discussing this further with the devolved Administrations, which are very interested in these considerations, as you would imagine.
The legacy arrangements following the end of the UK’s participation in the Committee of the Regions are being considered further by the Ministry of Housing, Communities and Local Government. I have received representations from members of the Committee of the Regions, who want some sort of ongoing body. Personally, I am not convinced of the necessity for such a thing, because we already consult plenty of other local government fora and there is no need for a separate one, but I know that the Ministry of Housing, Communities and Local Government is taking these discussions forward with existing members of the Committee of the Regions. Discussions are constructive, both with them and the various local government associations, about how the consultative rights and responsibilities that local government currently has at European level through that committee might be replicated domestically in a non-statutory way when the UK has left the EU.
The noble Baroness, Lady Hayter, also asked about the clinical trials regulation. As I am sure she remembers, we debated this at great length during the passage of the EU withdrawal Act, and it is an important issue. These regulations will not affect whether the CTR would come into force in the UK if implemented by the EU during the implementation period. The clinical trials regulation is expected to be implemented in 2020 and would therefore apply to the UK under the terms of the implementation period. We think that the clinical trials regulation is good legislation and we fully support it, but the noble Baroness will remember that one issue we had with it is access to various EU databases. Of course, access to those databases is a subject of live discussion and negotiation with the EU, which we hope to take forward when we enter the implementation period and discuss the ongoing relationship. We gave assurances at the time that we are committed to taking part in the regulations as much as possible under the negotiations. So it is not just a question of implementing the legislation, which we may do anyway if it occurs during the implementation period; it is also about ongoing participation in the various databases.
The Government have confirmed that UK law will remain aligned with parts of the EU’s CTR legislation, but within the UK’s control in all circumstances, so that researchers conducting clinical trials can plan with greater certainty. As I said, commitments were made in this House in April during the passage of the EU withdrawal Act, and have since been restated in the Government’s no-deal technical guidance issued to stakeholders in August. Any legislative requirements to deliver this commitment will be announced in the usual way.
Regardless of the outcome of the negotiations, the UK is committed to offering a competitive service for clinical trial assessment. This covers regulatory approval from the Medicines and Healthcare products Regulatory Agency, as well as services from the Health Research Authority’s Research ethics service, the National Institute for Health Research and the NHS. If UK legislation makes references to the clinical trials regulation, normal rules will apply to those references, as set out in the EU withdrawal Act and these regulations.
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.
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?
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.
No one is arguing that ambulatory provisions were referenced. The whole thrust of the debate this afternoon is that non-ambulatory provisions were not discussed. This was the sole purpose of the discussion in the other place and is what we would like to understand. The noble and learned Lord, Lord Hope of Craighead, has already indicated that the Explanatory Memorandum is deficient in relation to Scotland, and I would argue that it is deficient in another regard. In paragraph 2.5, it says that we are repealing, revoking and removing redundant provisions. That is not the case; the department is actually adding in an omission. Non-ambulatory provisions were simply not referred to in the debate or the original Act. That is an omission. To correct the record, it was an omission which is quite rightly being addressed. We would like to know whether it was by accident. I know my noble friend is reading a prepared speech, but we have now raised the issue this afternoon of non-ambulatory provisions. Was it by omission? Was it meant to be omitted? Between now and our leaving the European Union, can we expect any other omissions that need to be tidied up?
I am not sure that I accept my noble friend’s statement that there was an omission. However, as this is quite a technical matter, perhaps it would be better if we went away and looked at it in detail, and I will write to her about it.
My noble friend Lady Neville-Rolfe asked me about the total figures for statutory instruments so far. The laying of SIs allows Parliament to fulfil its essential scrutiny role and to go through the various steps required. We remain confident that the necessary legislation to fulfil a functioning statute book will be passed by exit day. The current totals are as follows. More than 470 EU exit SIs have been laid to date. They account for over 75% of the SIs that we anticipate will be required by exit day, and over 260 of them have now gone through the various processes and have been made. Good progress has been made and we remain confident that the required SIs will be laid in time for exit day. I think that I have dealt with all the queries that were raised.
I am very grateful for the helpful reply that my noble friend gave on the subject of the Joint Committee and the institutional arrangements. It is good news that thought is being given to how to make these work well after exit day. Perhaps, at leisure, he could look at the questions that I asked about consultation and impact assessments. I do not think that he quite replied to them and it would be helpful to know where the Government stand.
Committee adjourned at 6.47 pm.