My Lords, we now come on to the issue of enhanced protection of retained EU law. We have always understood the concerns that motivated noble Lords, but were concerned that the original amendment proposed by the noble Baroness, Lady Hayter, did not strike the right balance. In short, that amendment, as discussed in the other place, would have risked weakening rather than strengthening the rights in retained EU law. It would have left us unable to ready the statute book for exit or update it after exit, wreaking havoc across our domestic statute book in the process. However, in the best traditions of this House, both sides have now found more common ground. The noble Baroness, Lady Hayter, has tabled another amendment, which is aligned in its purpose if not in the mechanism used, with the amendments in lieu standing in my name. I am glad that the noble Baroness has been able to table a Motion to agree to some of those amendments.
Noble Lords will recall that at Report we brought forward amendments assigning a status to the different categories of retained direct EU law. The noble Baroness, Lady Hayter, herself mentioned, when tabling her original amendment, that there is a class of law where our amendments at Report did not provide for enhanced protection. That is our domestic implementation of EU directives, which is preserved through Clause 2 of the Bill. Much of this domestic implementation has happened under Section 2(2) of the European Communities Act 1972, which has historically been the delegated power used to implement many, if not most, of our EU obligations.
The Government are alive to the unique position that regulations made under the ECA to implement directives hold in our domestic legislation. They implement law which was negotiated at the EU level and which the UK as a member state was under a binding obligation to implement. They could in the past be modified only within the constraints of EU law. That is why the Government have tabled Amendments 4B, 4C, 4D and 4E, to reinforce protections for regulations created by Section 2(2) of the ECA and put in place an enhanced procedure once we have left the EU for secondary legislation amending such regulations.
We will have left the EU and be free to change these laws, but it is right that this is possible only within the constraints placed on us by active and informed consideration by Parliament, via an enhanced procedure
which will involve everything the noble Baroness has called for. This proposed enhanced procedure for amendments to Section 2(2) regulations reflects their unusual nature and unique status in our legislative framework, and will complete the tapestry of protection that is threaded throughout the Bill’s provisions for retained EU law in all its many different forms. These government amendments deliver the noble Baroness’s goal, and I hope I can persuade her of this.
I will also explain the four reasons why the Government cannot accept the noble Baroness’s alternative Amendment 4F and why I believe, happily, that our amendment resolves all of those issues. The first issue is devolution. I know that the noble Baroness is fully committed to the devolution settlements, as am I and my ministerial colleagues. As it is written, the noble Baroness’s amendment only allows amendment by primary legislation or subordinate legislation made under an Act of Parliament. This means that no subordinate legislation at all made under devolved Acts can amend retained EU law in these areas, even when it is within the competence of the devolved Administrations. Where Acts of this Parliament allow the devolved Administrations to make subordinate legislation, the amendment would require devolved legislation to be subject to a procedure before this Parliament.
I know that it will not have been the intention of the noble Baroness to impinge on the competence or procedures of the devolved Administrations and Parliaments, and I am sure it was not her intention to create an unprecedented position in which devolved legislation made by a devolved Minister should be considered by this Parliament. This could, of course, be solved by some radical changes in the drafting, but the issue has been addressed in our amendment by providing that it applies only to instruments made by UK Ministers before this Parliament. This is doubly important at this late stage in the Bill’s passage, when there is no time to seek supplementary legislative consent from the devolved Assemblies.
Our second concern with the noble Baroness’s amendment is the range of still significant issues where it would create legal uncertainty. Amendment 4F refers to retained EU law “relating to” various policy areas. Quite apart from the fact that there are certainly other areas potentially worthy of protection, we are concerned that it will never be clear what law falls into these categories. An example would be a piece of EU legislation relating to which classes of investor may or may not purchase certain financial products. Does that relate to consumer protection or financial conduct, or both? Will it depend on the intent of the modification in question?
As we have said before, if anybody feels that their private interests have been adversely affected, would they be able to challenge any SI on the basis that it had improperly either undergone, or not undergone, the enhanced procedure referred to in the amendment? Even if an SI had undergone the higher of the two procedures, confusion over which procedure should have applied could very well give rise to a host of legal challenges on procedural grounds and risk crucial corrections to ready our statute book for exit or future improvements being struck down. Again, happily, we believe that the government amendment resolves this issue by being clear that it focuses on the legislation
made under Section 2(2) of the European Communities Act to implement EU directives, and which is preserved by Clause 2 of the Bill. This will apply to all policy areas. We have also ensured that instruments can be combined and that, where there are grey areas, an instrument can safely be upgraded to our enhanced procedure. Our amendment provides both certainty and enhanced protection across the board.
The third concern is the interaction with other provisions in the Bill. I am very pleased that both Houses have now accepted the provisions on status which the Government tabled on Report. These set out how EU regulations, tertiary legislation, decisions and treaty rights will be amended, in particular ensuring that EU regulations and treaty rights will only be amended as if they were primary legislation. However, these provisions do not account for those others. If there is an EU regulation relating to one of the areas in the noble Baroness’s amendment, this Bill would provide two competing procedures and potentially conflicting instructions for how to amend it, and the scrutiny which would apply to any amendment by secondary legislation. In some cases, we might be able to muddle through but that would not be good law. As I said a moment ago, it would also open any changes to these important EU regulations being struck down. This cannot be good for the certainty that any enhanced protection is meant to provide.
The fourth issue is that we wish to say more in the Bill itself and less in SIs, as the Opposition have pushed for throughout the passage of the Bill. The noble Baroness’s amendment asks us to set out an enhanced procedure in an SI, including for the approval of both Houses and consultation. I am pleased to assure the House that we have done this already in the government amendments, which will provide that any changes made to these regulations by existing powers within our statute book will go through the affirmative parliamentary procedure. There will therefore be—this cannot be stressed enough—a debate and a vote in both Houses on every one of these statutory instruments. But they also go one step further, providing that these changes will also attract a new, enhanced pre-laying scrutiny requirement, which will ensure that there is a proper opportunity for public and parliamentary consultation on its content before the draft is laid.
This amendment proposes that any SI created by an existing power in our statute book which amends or revokes any Section 2(2) regulation must be published 28 days in advance of a draft being laid before both Houses of Parliament—a period, I hasten to add, which does not include recesses. This is not merely if the Minister thinks it is warranted, as the noble Baroness’s amendment suggests. This 28-day period presents both the public and parliamentarians—as well as parliamentary committees—with the opportunity to comment and make recommendations on the content of the statutory instrument. Any recommendations will then be reflected upon by the Government, who will consider whether to amend the SI ahead of laying it before Parliament. When introducing the SI to Parliament, the Minister or relevant authority will then also have to provide a “scrutiny statement”, which details the Government’s response to the recommendations they received and any
representations from other quarters, and their consideration of them. This statement is designed to sit alongside and complement the statements which the Bill already requires Ministers to make alongside any SI amending Section 2(2) regulations, explaining them and the “good reasons” for them, and therefore for any departure from EU directives as they stood on exit.
I apologise to noble Lords that I have dwelt at length on the details here, but before closing I will also draw the House’s attention to the numerous other commitments the Government have made to ensure that rights and protections within equalities, workers’ rights and consumer protection and other rights and standards are not diluted or damaged as we depart from the EU. In regard to equalities, a government amendment to the Bill from its initial Commons stage ensures that the Government provide confirmation that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010 when using the powers in the Bill. The UK has a long and proud tradition of upholding and championing rights and protections, both domestically and internationally. This is a legacy the Government are determined to build on as we move into the next chapter of this country’s history. I hope that the government amendments are welcomed by this House as the best solution forward in this matter, and I beg to move.