I wish to speak about amendments 87 and 217, tabled by the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) and his Plaid Cymru colleagues.
Amendment 87 provides that the expression “EU-derived domestic legislation” in clause 2(2) should not include
“any enactment of the United Kingdom Parliament which…applies to Wales and does not relate to matters specified in Schedule 7A to the Government of Wales Act 2006”,
and seeks to apply the same provision, mutatis mutandis, to Scotland and Northern Ireland. The matters specified in Schedule 7A are those matters that are reserved to the United Kingdom Parliament under the terms of the Welsh devolution settlement. According to the explanatory statement attached to the amendment, its purpose is to
“alter the definition of EU retained law so as only to include reserved areas of legislation. This”,
it explains,
“will allow the National Assembly for Wales and the other devolved administrations to legislate on areas of EU derived law which fall under devolved competency for themselves.”
However, the actual effect of the amendment would be far more wide-ranging.
The purpose of clause 2(1) is specifically to preserve EU-derived domestic legislation after exit day in order to ensure—as we have heard—that there is a coherent statute book. The expression “EU-derived domestic legislation” is defined in clause 2(2), and the category of legislation that is thereby preserved is very widely drawn. The effect of the amendment would be that any legislation applicable to Wales that might otherwise fall within the definition of EU-derived domestic legislation would fail to do so if it were also an enactment of the United Kingdom Parliament. There will be a wide range of such legislation in force that predates devolution and also postdates it, right up to—I venture to suggest—the enactment of the Government of Wales Act 2017.
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The consequence of the Plaid Cymru amendment would therefore be that all such legislation would fall outside the definition of EU-derived domestic legislation and would therefore not be preserved in domestic law at the moment of exit from the European Union. The enormous legislative gap thus created would be disastrous for the people of Wales, given the circumstances of our exit, and would make it extremely difficult for the United Kingdom Government to agree a transitional arrangement with the EU, or, indeed, a free trade agreement, given the huge legislative desert that would be created. I have no doubt that that is not what was intended by the hon. Member for Carmarthen East and Dinefwr and his colleagues, and I therefore invite him not to press the amendment.
Amendment 217, read alongside amendment 64 to schedule 8, would exclude the EEA agreement from the Bill, thus allowing the UK to remain in the EEA. There has been much discussion today about the EEA agreement, which is an agreement between the member states of the EU, the EU itself and three of the four members of EFTA: Iceland, Norway and Lichtenstein. The UK is undoubtedly a contracting party to the agreement in its own right. Indeed, it has no option but to be so, since article 128 of the EEA agreement provides that any European state becoming a member of the European Community—or, now, the European Union—must apply to become party to the EEA agreement. In other words, British membership of the EEA is effectively a consequence of its membership of the European Union. The United Kingdom has of course given notice of its intention to
withdraw from the European Union and, by application of the provisions of article 50 of the treaty on European Union, when that notice becomes effective the EU treaties will cease to apply to the United Kingdom.
This also has an impact on British membership of the EEA. Article 126 of the EEA agreement explicitly provides that it applies to the territories to which the treaty establishing the European Economic Community—now the European Union—is applied, as well as to the three EFTA member states. Given that the EU treaties will no longer apply to the UK at that point, and given that the UK is not one of the three EFTA member states mentioned in the EEA agreement, it necessarily follows that at that point—the moment of the UK’s departure from the European Union—we will cease to be subject to the provisions of the EEA agreement. In other words, British membership of the EEA will effectively automatically fall at that point.