PARLIAMENTARY DEBATE
Exiting the European Union (European Union) - 23 November 2020 (Commons/Commons Chamber)

I beg to move,

That the draft European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020, which were laid before this House on 21 October, be approved.

It is a pleasure to be here to discuss these regulations, and I hope that we are not drawing too much attention away from the Prime Minister’s press conference, which is under way as I speak.

As Members will be aware, at the end of this year the process of transition to our future relationship with the EU will be complete. We will have recovered our economic and political independence, upholding a key demand of the British people. The Government have already undertaken extensive work to provide for a functioning domestic statute book by 31 December. Ahead of our exit from the European Union on 31 January this year, the Government made a significant amount of exit-related legislation, including more than 630 statutory instruments.

The Government continue to deliver the secondary legislation required to ensure a functioning statute book at the end of the transition period, so that we are able to seize the opportunities of being an independent sovereign nation. This instrument is a clear example of that. It makes various consequential amendments and repeals in respect of retained EU law, relevant separation agreement law and other EU-derived domestic legislation. I will take the opportunity to explain that in further detail in a moment, but, in short, this instrument is highly technical and does not implement any new policy. It will ensure that the UK statute book works coherently and effectively following the end of the transition period.

This statutory instrument was laid by my right hon. Friend the Chancellor of the Duchy of Lancaster, who cannot be here today, in exercise of the temporary powers provided for in the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. These powers allow Ministers to make provisions that they consider appropriate in consequence of those Acts. I raise that because, during the passage of those Acts, some Members were concerned that these powers were too wide and would not afford Parliament the ability to scrutinise important legislation properly. The Government have always been clear that these are standard consequential powers that are commonplace in legislation and that such powers are inherently limited, with the main expected use of this power being for matters of a technical nature. This instrument is no exception.

The Government have already made several exit-related consequential statutory instruments in recent years, which were needed as a result of the European Union (Withdrawal) Act 2018. Since those instruments were made, we have left the EU with a deal—namely, the withdrawal agreement—and entered into the transition period. The statutory instrument we are discussing today includes provisions required as a result of the withdrawal agreement and the legislation that implemented it: the European Union (Withdrawal Agreement) Act 2020. The main changes arising from that Act relevant to this instrument are that it introduces the transition period and delays the commencement of exit-related statutory instruments until implementation period completion day; it provides that retained EU law comes into effect on IP completion day instead of exit day; and it establishes relevant separation agreement law. In the light of the introduction of relevant separation agreement law, the instrument clarifies how references in UK legislation to EU instruments are to be interpreted after IP completion day. That includes how references to EU instruments that form part of relevant separation agreement law should be read.

The amendments made to the 2018 Act by the implementation of the withdrawal agreement mean that it is possible for EU instruments to form part of retained EU law for some purposes and have effect as relevant separation agreement law for other purposes. Therefore, after IP completion day, references to EU instruments in domestic legislation can have dual meaning. The instrument makes interpretation provisions to remove uncertainty about which version of an EU instrument applies, whether it is the retained version or the version applied by the withdrawal agreement. This ensures that the correct interpretation of the EU instrument applies following the end of the transition period and, crucially, removes room for confusion or uncertainty.

At this point, I draw the House’s attention to the fact that while the negative procedure could have been used for making this instrument under the consequential powers, we are following the affirmative procedure. This is to provide the opportunity for parliamentary debate on a piece of legislation of significant legal importance—particularly with regard to the updated interpretive provisions for relevant separation agreement law—even if it is not of note in policy terms. To make these interpretive provisions, the instrument makes minor technical amendments to primary legislation, including the 2018 Act, the Interpretation Act 1978 and the latter’s devolved equivalents—the Legislation (Wales) Act 2019, the Interpretation Act (Northern Ireland) 1954 and the Interpretation and Legislative Reform (Scotland) Act 2010.

Although the Government are not required to seek consent from or consult the devolved Administrations on the provisions included in this instrument, there was extensive engagement at official level prior to laying this instrument to make sure that it works effectively for the devolved legislatures. I take this opportunity to note our gratitude to the DAs for their constructive collaboration on this instrument and on the wider body of readiness secondary legislation that is needed by the end of this year.

The instrument also makes technical repeals to redundant provisions in primary legislation arising from the EU (Withdrawal) Act 2018, primarily due to the fact that it repealed the European Communities Act 1972. The 2018 Act provided for the repeal of the amended provisions of the 1972 Act, but not the amending provisions that lie behind them. As a consequence of those repeals, the amending provisions are redundant. Without these regulations, this legislation will continue to sit meaninglessly in our statute book, and repealing it ensures that the statute book remains clear and effective.

As well as repealing redundant legislation, this instrument also makes consequential amendments to the 2018 Act and the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019 to reflect the fact that they come into effect on IP completion day, rather than exit day, and to ensure that they operate effectively in the light of this.

I hope, therefore, that all Members of the House can agree with me that the draft regulations before them perform a small but worthwhile role in our preparations for the end of the transition period and demonstrate the Government’s commitment to ensuring certainty and clarity in the UK’s statute book.

I am sure that the Minister is wrong and that all eyes are on us and not on the Prime Minister’s press conference. I congratulate her on her introduction of this most exciting of the statutory instruments we are looking at over the current period. We are broadly supportive of this instrument, as it largely clears up the statute book and serves to ensure that cross-references to EU law in domestic law or in other EU law, which continues as retained EU law, make sense after the completion day from the implementation or transition period.

The repeals relate mostly to references to the European Communities Act 1972, which has already been repealed by the European Union (Withdrawal) Act 2018, so it is further legislative tidying up and not the last that we can expect to see in the coming months. This continues the Government’s habit of amending primary legislation by statutory instrument, and in this case, certain provisions of the Interpretation Act 1978 will be directly amended by this instrument. It also amends parts of the 2018 Act.

I cannot help but note that the accompanying explanatory memorandum is longer than the legislation itself, and I wonder if the Minister can tell the House whether that implies a certain nervousness in the Department about publishing yet further changes to the withdrawal Act, this close to the end of the transition period. Within the explanatory memorandum, there is much emphasis on the fact that none of these changes is substantive and that the Government are not trying to sneak something through under the radar—indeed, the Minister herself made that point. Is that perhaps a result of the rather chastening experience that the Government have had when they have tried to sneak things—such as, for example, the United Kingdom Internal Market Bill—through under the radar?

We have concerns about legal certainty going forward and the fact that the European Union (Withdrawal) Act 2018 has already had to be amended on several occasions. We warned about that when the Act was debated, and it serves to demonstrate the massive task that faces practitioners and judges when working out what law will be in force from 1 January 2021. That points to some incompetence and poor planning from the Government. How many more times will they need to amend the Act that they pressed through the House? How many more times will businesses and lawyers have to make a plan, scrap it and start again?

Although in principle, the withdrawal Act sets a basic rule that existing EU law will be retained, it is clear from the many subsequent changes to that Act, the enactment of other Acts such as the Taxation (Cross-border Trade) Act 2018, and the huge number of statutory instruments that have been tabled, that recourse to a wide range of statutory materials will often be needed to work out exactly what the governing provisions are.

I am told that jigsaw puzzles have been popular during lockdown, but the Government are creating a particularly challenging legal jigsaw puzzle in which the picture on the front of the box is constantly changing. Nevertheless, the outcome is crucial, because it underpins UK law. Although legal practitioners face a daunting task, they will at least have the resources to check for amendments. Again, as is so often the way, those without support and financial resources are the most vulnerable, and that includes litigants in person, or members of the public who want to know which law governs a particular situation. In some areas, that is becoming a near-impossible task, with extremely expert lawyers and judges harbouring concerns about the state of legal affairs from 1 January and the uncertainties that they envisage will arise.

At the same time as creating those challenges for the legal system, the Government’s failure to negotiate effectively on behalf of the services sector in the current talks on our future relationship with the EU is creating other challenges. By not securing mutual recognition of qualifications and—specifically for the legal sector—certainty regarding accession to the Lugano convention, there are real questions about the ability of UK lawyers to continue working across Europe with certainty and a lack of confidence in their ability to continue in their business.

Of course, this is not just about lawyers, litigants in person, or interested citizens; this is about businesses and jobs that need legal advice to draw up contracts and ensure that they comply with the seemingly ever-changing law. That costs money, time and resources, and while the economy is under such pressure from the fallout of the pandemic, I urge the Government not to add to that.

Will the Minister tell the House when the Government will have finished amending the legal framework for our departure from the European Union and say how we are to work with our European partners moving forward? Clarity is essential, and the Government have a responsibility to provide it.

I am grateful to have caught your eye, Mr Deputy Speaker, because those paying close attention to the call list will see that my hon. Friend the Member for Stirling (Alyn Smith) ought to have been here, but he has been detained in Westminster Hall.

I am not sure whether it was a happy memory of, or a nightmarish flashback to, the parent legislation and my time served on the European Statutory Instruments Committee when I looked at this statutory instrument. The purpose of the instrument is

“to ensure that the UK statute book works coherently and effectively following the end of the transition period.”

I thought that was what the 2018 Act was for in the first place and all the 600 statutory instruments the Minister referred to, yet here we are, years after the referendum and years after the Act was passed, still having to through this process. It is the legacy of the mess of Brexit, caused by Cameron and his cronies, who had no real vision and kicked off a referendum process with no idea what would happen if people actually voted to leave. Here we are dealing with the consequences, and now we have a Government who do not particularly want any kind of deal. They would quite happily crash out and deal with all the consequences afterwards. That is why we are barrelling towards no deal.

This might be a necessary statutory instrument, but it really should not be. It is disappointing on a number of levels. First, as I have said, it is disappointing that it is happening at all. Secondly, it refers to the interesting concept of a UK statute book. Scots law has always been distinct from English and Welsh legislation, before and after the union of Parliaments in 1707, let alone after the re-establishment of the Scottish Parliament in 1999. I accept what the Minister says—of course there has been constructive dialogue with the devolved Administrations, because nobody wants a messed up statute book or acquis of law, but it does not change the fact that the UK Government are using a statutory instrument to directly amend primary legislation passed by Scotland’s Parliament, in the shape of the Interpretation and Legislative Reform (Scotland) Act 2010.

This goes on with a host of repeals of primary legislation by statutory instrument, which is being done late at night in a not very busy Chamber. Thus these laws are amended. Where is the European Research Group, where are the Maastricht rebels, for this great act of taking back control? In effect, this is ministerial fiat. Ultimately, the Brussels bureaucrats are being replaced by Whitehall mandarins. This is not parliamentary sovereignty; it is effectively executive diktat.

Frankly, let them get on with it, as my hon. Friend—he should be my right hon. Friend—the Member for Perth and North Perthshire (Pete Wishart) likes to say. Scotland wants no part of this shabby Brexit process. The more the Government hasten its implementation through statutory instruments like this, the more it hastens the day when Scotland takes full control of its statute book once again as a fully independent and sovereign nation.

As I have set out, the purpose of the instrument really is to ensure that the statute book works coherently and effectively following the end of the transition period. It does this by making various consequential amendments and repeals in respect of retained EU law relevant to the separation agreement law and other EU-derived domestic legislation.

I hear what the hon. Member for Sheffield Central (Paul Blomfield) says from the Opposition Front Bench. I spoke to my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) before the debate. He shares some of the concerns about the legislative aspects of leaving the EU and was very satisfied with the regulations. He has consulted his friends and colleagues in the legal and financial services professions, and they believe this to be a useful piece of regulation that clarifies and tackles ambiguity. He has also raised concerns about the complexity of leaving the EU. Yes, leaving the EU is a complex process, and it was always going to be. I am glad to say that the UK public deemed it to be an endeavour worth pursuing. They have supported it throughout the referendum and the subsequent general elections.

The hon. Member for Glasgow North (Patrick Grady) bemoaned politicians kicking off referendum processes without due consideration. I hope that he will take his own advice. At least we listened to the result of that referendum.

Finally, I reiterate my thanks to Members across the House for contributing to the debate. This is a highly technical issue and not exactly the most exciting television viewing, but it is a critical piece of secondary legislation that demonstrates the Government’s commitment to ensuring that there is certainty and clarity about the UK statute book.

Question put and agreed to.

I suspend the sitting for the sanitation of the Dispatch Boxes.