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.
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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.