Draft European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019

Matthew Pennycook Excerpts

Thursday 21st February 2019 General Committees

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

It is a real pleasure to serve under your chairmanship, Mr Bailey. The Minister has already made clear the reasons why the European Statutory Instruments Committee recommended that the draft regulations be upgraded, and why he accepted that recommendation. I agree that the draft regulations are largely technical in nature and uncontroversial. For that reason, we do not intend to divide the Committee today, and my remarks will be brief.

I want, however, to probe the Minister on two specific points about the draft regulations. The first relates to part 5, which gives effect to the schedule. As he made clear, part 5 makes consequential repeals to EU-related domestic legislation in relation to parliamentary approval for accession treaties for other member states to the EU; the Single European Act and other treaties; and devolved representation in EU institutions for certain regional purposes. As he said, the repeals appear to be similar in intent to those that we considered late last year in the draft European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018, in the sense that they appear to be cosmetic and are required only to tidy up redundant references that will be of no continuing legal or practical consequence following the repeal of the European Communities Act. Given the complexity of the draft regulations that we are considering, will the Minister confirm for the record that the relevant repeals concern matters of genuine post-exit redundancy and have no effect on anything that is done prior to exit day under them or in connection with them?

My second point about the draft regulations relates to parts 2, 3 and 4, all of which, as the Minister said, concern how cross-references in domestic legislation to EU law will be understood after exit day. As the Minister has set out, schedule 8 of the European Union (Withdrawal) Act makes it clear that the current ambulatory relationship between certain UK legislative instruments and EU law will cease after exit day, to be replaced by an ambulatory reference to the new body of EU retained law. The provisions in part 2 of the draft regulations, and similarly for devolved legislation in parts 3 and 4, clarify how non-ambulatory references—references that do not currently allow for automatic updating subject to developments at an EU level—should be understood.

The fact that the draft regulations require this clarification suggests that the Government believe that the European Union (Withdrawal) Act does not provide for the correction to non-ambulatory references in the same way as it does for ambulatory references. I find it somewhat difficult to understand why that Act did not make provision for how non-ambulatory cross-references to EU legislation up to the point immediately before exit should be read and, consequently, why the draft regulations are required to correct that omission.

Why did the European Union (Withdrawal) Act not address non-ambulatory references? Was it an oversight—an understandable one, perhaps—or did the Department intend to identify all the non-ambulatory references to EU law one by one and use the correcting power in section 8 of the Act on them, only to realise subsequently that compiling an exhaustive list would be more difficult than creating a general rule? Whatever the reason, I think that the Committee, and anyone following our proceedings, would benefit from an explanation from the Minister.