My Lords, Amendment 81 in the name of the noble Baroness, Lady McIntosh of Pickering, concerns the core concept of this Bill, namely that it preserves and makes functional the law at the moment of the UK’s exit from the EU. As the long and learned debates in this House and the other place demonstrate, this is of course something much simpler said than done. We can all agree that the law in the UK should not be considered deficient simply because the EU adopts a new law once the UK has left. The Bill reflects that with the provision in Clause 7(4) and, therefore, this would not constitute a valid trigger for the use of the power in Clause 7(1).
It is also the case that the law is not deficient simply because EU law, as is often the case in some areas, contains provisions that are adopted before our withdrawal but only come into force or apply after exit day. This reflects the approach taken in Clause 3, which provides for the conversion of direct EU legislation that is operative in the UK immediately before exit day. As the Government set out when we debated Clause 3, we believe that it is right that we incorporate only that law which is operative at the time of our exit. It is surely not taking back control to this Parliament and the
devolved legislatures if we simultaneously preserve the automaticity of new provisions of what was EU law becoming operative in our law, months or perhaps years later. It would be unacceptable for EU law provisions to flow automatically into the UK many years after we have left and would undermine the clarity and certainty this Bill is designed to provide. That is why Clause 3 preserves only the law as individuals and businesses were bound by it immediately before exit day, and why that decision is reflected in Clause 7(4), which makes it clear that the law is not deficient simply because it does not contain planned future changes to EU law. In preserving EU law, the Government have drawn a line in the legal sand on exit day. Wherever the line was drawn, the outcomes would, of course, please some and not others. I note that the controversial ports regulation, although already in force, will enter into application only days before exit day. Clause 7(4) merely reflects this line in the legal sand.
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The power in Clause 7(1) is already broad and a restriction like this, which prevents the continued flow of changes in EU law into the UK legal system after our exit, is a feature and not a bug. If the UK wishes to make those changes, which may be excellent and well designed in many cases, this Parliament and the devolved legislatures should make that choice, actively and through the normal legislative process.
I move on to Amendment 85 in the name of the noble Baroness, Lady Bowles of Berkhamsted. Clause 7(7) contains a list of restrictions on the exercise of the power in Clause 7(1). That power is exercisable only to prevent, remedy or mitigate deficiencies of the types defined in Clause 7(2), or those which are of a similar kind. The Government believe this is unequivocally the right thing to do. The Government do not take delegated powers lightly and, as the amendments we proposed in the other place show, we want the admittedly and necessarily broad powers in this Bill to be as tailored as possible to their purpose. We have therefore included these restrictions on the power. They are modelled on those that apply to Section 2(2) of the ECA but go further, protecting the Human Rights Act and, in very large part, the Northern Ireland Act. I hope that this demonstrates the Government’s real commitment to listening to this House and to placing robust limits on the power.
Furthermore, to ensure a clear distinction between the purposes and scrutiny of Clause 9 and Clause 7, we also restricted secondary legislation under Clause 7 from being made to implement the withdrawal agreement. Clearly, when a Minister is remedying a deficiency using regulations made under Clause 7, the Minister may be alive to the fact that some corrections will mean that the statutory ground is, as it were, withdrawal agreement ready. However, provided that the Minister’s intention in making the regulations is simply to correct deficiencies, the restriction in Clause 7(7)(d) will not be relevant. However, we did not want it to be possible to circumvent the scrutiny provisions attached to Clause 9.
Amendment 95 in the name of the noble Baroness, Lady Bowles of Berkhamsted, Amendment 244 in the name of the noble Lord, Lord Bassam, and Amendment 244A in the names of the noble Baroness,
Lady Taylor, the noble Lords, Lord Beith and Lord Dunlop, and the noble and learned Lord, Lord Judge, concern the use of the powers in the Bill to make material policy changes, which have been referred to. I hope to reassure noble Lords when I say that this Bill is a framework Bill with the sole purpose of providing maximum certainty for businesses and individuals as we leave the EU, by ensuring that EU law continues in our statute book effectively on exit day.
I understand and sympathise with the amendments on not making material or other policy changes under this Bill. The Government have been clear that this Bill is intended to provide continuity and certainty and that it will be for future legislation, proposed by Ministers and scrutinised in the normal way by Parliament once we have left the EU, to consider where we wish to deviate from the law we are converting and correcting under this Bill. That conversion and correction is not, however, devoid of policy choices. We have been open with Parliament since the White Paper when we say “no major policy decisions” but we cannot rule out some policy choices. The choice between two regulators for a transferred function might seem fatuous to some in this Chamber, but it is a policy consideration and one that individuals might challenge if they felt that they would be better placed in one world than another.
I regret to say that these restrictions—founded on what seem like common-sense terms or which rest on new and untested definitions—are a magnet to the jewel in our economic crown that is the Scottish, Northern Irish, English and Welsh legal sectors, which are all well represented in this House. The exchanges on previous days between members of the Scottish Bar have been a credit to the Faculty of Advocates.
The Government do not want to invite litigation regarding swathes of the crucial SIs under this Bill, which would serve only to undermine legal certainty and, by doing so, hinder preparation for our exit. The Government intend that, other than the specific exceptions listed in Clause 5 and Schedule 1, this Bill will ensure that there will be no omissions of EU law currently operative in the UK. If a Minister believes it is appropriate to remove any retained EU law—I stress that there are examples of where this will be wise, such as in relation to the translation functions of the European Parliament —the House and its sifting committee will have the opportunity to scrutinise that instrument and consider the excision in question.
Furthermore, the power in Clause 7 is restricted, both by its purpose—remedying deficiencies arising from withdrawal—and in what it may do. We have always said that significant policy changes will be brought through by primary legislation, receiving proper parliamentary scrutiny. Noble Lords will have seen this in the form of the other EU exit Bills currently progressing through Parliament, such as the customs, trade and sanctions Bills. I hope I have satisfied noble Lords’ concerns and I request them to not press their amendments.
The noble Baroness, Lady Bowles of Berkhamsted, also tabled Amendment 96. I am grateful to her for it. I will not repeat my previous argument regarding the risks of injecting uncertainty via new and untested definitions, but I think the point stands here also. However, the amendment gives me the opportunity to
make clear that it is not the Government’s intention to increase the legislative burden on individuals and businesses with our exit from the EU. In fact, we have gone to great lengths in the Bill to make provisions that will ensure that, so far as is practicable, the law continues to function once we have left the EU just as it did immediately before exit. This ensures maximum certainty and continuity for businesses and individuals as we leave the EU. I hope this reassures the noble Baroness that her amendment is not necessary, and I ask her not to press her amendment.
Amendment 100, tabled again by the noble Baroness, Lady Bowles of Berkhamsted—she has been particularly busy on this clause—prescribes that Clause 7 may not be used to do more than what is essential. I have expanded at length already on why the Government believe that a test of appropriate is the correct one for these powers. That argument is not accepted by many in this House, but I did my best. I hope that those arguments, which I will not try the Committee’s patience by rehearsing again, have addressed the noble Baroness’s concerns on this matter. I hope that she will be content not to press her amendment.
Let me go back to the questions posed earlier by my noble friend Lady McIntosh. On who will determine whether the law is deficient, the answer is Ministers, as constrained by courts and Parliament, in line with normal responsibilities. The SIs will be made largely before exit, to come into force on exit day—it may be redundant to say this, but they will be made largely between Royal Assent and exit day. I hope that has addressed her concerns and I hope noble Lords will feel able not to press their amendments.