European Union (Withdrawal Agreement) Bill

Committee (2nd Day) (Continued)

Clause 27: Dealing with deficiencies in retained EU law

Amendment 24

24: Clause 27, page 32, line 35, leave out paragraph (c) Member’s explanatory statement This amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.

My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.

When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with

“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”

arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.

In the Explanatory Notes, the Government had said that

“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”

That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.

Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that

My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.

During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?

The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.

As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.

The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.

Turning to Amendment 25, Parliament has already given its approval to the power in Section 8. A large number of SIs have been laid under this power, as the House will be aware, to make minor or technical amendments to ensure continuity and to minimise disruption. Clause 27(5) extends that sunset on the deficiency power in Section 8 of the European Union (Withdrawal) Act 2018 so that it now hinges on IP completion day instead of exit day—31 December rather than 31 January. This ensures that this power can be used, as intended, for up to two years following the creation of retained EU law in the new scenario, bearing in mind that we will still have ongoing cases of EU retained law occurring during the implementation period. Without this fix, the Government may have insufficient time, following IP completion day, to identify and correct deficiencies with this power. For example, it is possible that some deficiencies will become apparent only after the conversion of EU law has taken place and time will then be needed to make the necessary legislation to fix them. In these cases, without extending the sunset on this power, we may need to bring forward additional primary legislation to make what will be minor technical changes to correct issues that have arisen within the statute book.

On Amendment 26, it is necessary that Clause 27(6) remains in the Bill. Without the amendment made by subsection (6), we may not be able to use the deficiencies power to correct deficiencies arising as part of the whole process of withdrawal, including as a result of the implementation period or the wider withdrawal agreement. For example, it is possible that previous deficiency SIs will need amending or revoking as they may no longer work at the end of the IP due, as I said earlier, to any new EU laws that are introduced during the implementation period.

Removing this subsection would jeopardise the certainty provided by this approach for businesses and individuals at the point at which EU law ceases to apply in the UK. I would like to reassure both noble Baronesses that the restrictions on this power, established by the European Union (Withdrawal) Act 2018, remain the same to a great extent. Moreover, the procedure for negative SIs will also continue to be subject to sifting, as was originally provided for by Part 1 of Schedule 7(3) to that Act.

Finally, subsections 2(c), 5 and 6 of Clause 27 are essential to update the Section 8 power in the European Union (Withdrawal) Act 2018 for it to fulfil the purpose of ensuring that the UK has a functioning statute book, in light of the withdrawal agreement. It is appropriate for a responsible Government to have the means to correct any deficiencies in the statute book, in light of these new circumstances.

I apologise to the House for the essentially technical nature of the explanations, but I hope my reassurances and explanations will enable the noble Baroness, Lady Ludford, to withdraw the amendment.

Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?

We certainly have no current plans to extend it any further.

The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely

“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?

Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?