DEBATE ON EU RETAINED LAW
READ SIR BILL CASH’S INTERVENTIONS IN PARLIAMENT ON 18/1/2023 .
Consideration of Bill, as amended in the Public Bill Committee
[Relevant documents: Fifth Report of the European Scrutiny Committee, Retained EU Law: Where next?, HC 122, and the Government response, HC 885; and Oral evidence taken before the European Scrutiny Committee on 15 November 2022, on The UK’s new relationship with the EU, HC 120.]
New Clause 1
“Assimilated law”
(1) As regards all times after the end of 2023, the things listed in the left-hand column are to be known by the names in the right-hand column.
| At or before the end of 2023 | After the end of 2023 |
|---|---|
| Retained EU law | Assimilated law |
| Retained case law | Assimilated case law |
| Retained direct EU legislation | Assimilated direct legislation |
| Retained direct minor EU legislation | Assimilated direct minor legislation |
| Retained direct principal EU legislation | Assimilated direct principal legislation |
| Retained domestic case law | Assimilated domestic case law |
| Retained EU case law | Assimilated EU case law |
| Retained EU obligation | Assimilated obligation |
(2) Accordingly, as regards all times at or before the end of 2023, the things listed in the right-hand column continue to be known by the names in the left-hand column.
(3) Schedule (“Assimilated law”: consequential amendments) contains amendments consequential on subsection (1).
(4) A reference in an enactment to a thing in the left-hand column of the table in subsection (1) is to be read, as regards all times after the end of 2023, as a reference to the thing by its name in the right-hand column.
(5) Subsection (4) does not apply to any title of an enactment (including any provision about how an enactment may be cited) or any reference to a title of an enactment.
(6) The provision that may be made by regulations under section 19 (power to make consequential provision) in consequence of subsection (1) of this section includes, in particular—
(a) provision adding entries to the table in subsection (1) for things which relate to the things for which there are entries in the table (and adding definitions for those things to subsection (7));
(b) provision amending an enactment in consequence of the name of a thing being changed by subsection (1) (including by virtue of regulations under section 19).
(7) In this section—
“retained case law”, “retained domestic case law” and “retained EU case law” have the meaning given by section 6(7) of the European Union (Withdrawal) Act 2018 (as it has effect on the day on which this Act is passed);
“retained EU law”, “retained direct EU legislation”, “retained direct minor EU legislation”, “retained direct principal EU legislation” and “retained EU obligation” have the meaning given by Schedule 1 to the Interpretation Act 1978 (as it has effect on the day on which this Act is passed).”—(Ms Ghani.)
This new clause renames “retained EU law” and related bodies or types of law and makes related provision.
Brought up, and read the First time.
I know that many of those who support the Bill do not think that any level of parliamentary scrutiny is necessary to revoke EU laws because—they claim—accountability and scrutiny were lacking in the first place when the laws were brought in. I say to those people that two wrongs do not make a right. Is taking back control not about us, in this Parliament, having a fuller say in the legislative process?
“Workers and employers will be back at square one. The whole lengthy and expensive process of appeals will have to be repeated.”
Amendment 26 attempts to restore some balance and certainty to the law. It does not impinge on the courts’ ability to depart from existing EU law, but it recognises that legal certainty, clarity and predictability are desirable in a healthy and functioning democracy, and that it is Parliament that should determine significant changes to the law.
Amendment 24 relates to a smorgasbord of consumer rights and protections that are derived from the EU, such as the right to compensation when flights are cancelled or delayed or boarding is denied, and giving priority to passengers who have a disability. It also includes laws for similar provisions when a train is delayed or cancelled in the form of the Delay Repay system. I am sure that the Delay Repay websites for Avanti and quite a few other rail operators are getting more visits than the retained EU law dashboard website. There is a problem with the rail system at the moment, but we do not want to see passengers denuded of the right to claim compensation when there are delays.
Other regulations under the amendment include those preventing shops from imposing surcharges that go beyond the coverage of costs; protecting consumers from unsafe electrical equipment by setting standards for the testing of products and the voltages of appliances; and setting minimum safety standards on children’s toys. There are many more, and I will not list every regulation, because I do not claim that the list is authoritative or comprehensive, but it is a list of laws that we believe should be kept alongside the similar amendments on workers’ rights, and I hope we can protect those, too.
Finally, I will speak briefly about how we are standing up for our environmental protections. My hon. Friend the Member for Leeds North West (Alex Sobel) spoke at length in Committee about this Government’s dire approach to environmental laws, and as I have been speaking for some time and other Members want to speak, I will not repeat everything that he said. I certainly do not have the intimate knowledge that he does of white-clawed crayfish, but I will summarise why amendments 21 and 22 and new clause 5 are important for protecting environmental standards.
There is deep concern among many in the environmental movement that in this Government’s deregulatory war, our natural environment, among other areas, could become a casualty. There is a worry that some hold the view that environmental protections are red tape that hold back growth. Our amendments and new clause would provide safeguards against dangerous deregulation that could undermine national and international commitments to environmental protection and improvement.
Amendments 21 and 22 list 19 regulations that would be placed beyond the scope of the sunset in clause 1 and the powers of restatement in clause 15. They cover a vast range of important policy areas about which the public feel passionately, including animal welfare, the protection of wildlife, water quality, the treatment and discharge of sewage, the protection of human health from the impacts of air pollution, the safe use of chemicals and pesticides, the use of animals in scientific testing and the prevention of the spread of animal diseases, such as bird flu. While these regulations are some of the most prominent, they represent just a handful of the 1,100-plus environmental regulations that are key to safeguarding our natural environment. Weakening any of them could cause a vast amount of suffering for our communities, and we want to see that prevented.
We have also tabled new clause 5, which would protect our environmental protections from the sweeping powers that the Bill gives Ministers. It would limit the changes that can be made to environmental protections under clause 15 powers. It outlines a number of conditions that would have to be met for changes to be made to the existing set of laws, including that any change must be considered by a relevant national authority to contribute to a significant improvement in environmental protection, which contrasts with the Bill, which at the moment states that any restatement must not increase the regulatory burden. Perhaps we should listen to experts who say that they are concerned about what the Bill could mean for the environment, or the 21 different environmental groups that have signed a joint letter expressing their concern about the impact of this Bill. Even Chester Zoo in my constituency has written in to express its concerns.
Zoos, business leaders, trade unions, lawyers, environmental groups and even former Conservative MEPs have raised the alarm about the impact of this Bill, because it is a leap into the dark, a kamikaze approach to Government and a power grab. If Government Members support this Bill, they will bear the responsibility for its consequences for many years to come.
The Government have admitted that they do not have such a list. They have been asked repeatedly and the best answer they could come up with was that the
“dashboard presents an authoritative, not comprehensive, catalogue”
of retained EU law. It might have been better to say, “We don’t yet know what it is we’re talking about.” I think that is a fair summary of the Bill and that is why the amendment is needed. It will provide a fall-back and a fail-safe and it gives the House control—there has been much debate about that today—about what stays and what goes. I hope Members will support it.
On the sunset date, everybody knows that it is completely unrealistic—everybody knows. In the Second Reading debate, a former holder of the job I had the privilege to do, the Secretary of State for Environment, Food and Rural Affairs—the right hon. Member for Chipping Barnet (Theresa Villiers)—while supporting the Bill, said that there was a bit of a problem with the deadline here, because of what the Government were asking civil servants and Ministers to do. Nobody believes it is going to happen, which is why I argued last time that lots of this stuff will just be saved, using the powers that are within the Bill. We should help the Government by voting for amendment 18 to move the sunset date from this December to 2026.
Above all, this is a terrible diversion of resources and effort. There are so many things in this country at the moment that are not working. I am not going to go through the list, but we all know that because it is the experience of our constituents. Why do the Government not focus on those things, rather than on pieces of legislation that are working—because they protect our environmental standards, consumer rights and working conditions? The fact that they originated, in many respects, from the European Union really does not matter one way or another. They are laws that we approve of, we like and we want to keep and that is why so many people are so unhappy about this Bill: it threatens and it does not look as though the Government know what they are doing.
There is a misconception on the Opposition Benches, in so many respects, when it comes to this Bill and the amendments tabled to it. The amendments themselves are deeply confused. On the one hand, there is a concern that the Bill is a great power grab; that this enormously powerful state will snatch power away from the Houses of Parliament. On the other hand, Opposition Members want the regulations to be extended. Either this is a great power grab or the regulations should be extended; it cannot be both.
The truth is that the Bill is mainly technical. What it is doing is correcting our statute book so that we no longer have laws referring to European regulations that may themselves have been repealed or amended. We currently have rules that are based on things that either are out of date or even, possibly, no longer exist. That is no basis for our statute book. It is a technical tidying-up operation that will apply to the regulations that are kept.
However, if we look at clauses 4 and 5, we see that it is also technical in terms of ensuring that our law has one base, and that the validity of, speaking loosely, UK law—obviously there is Scots law, English and Welsh law, and Northern Irish law—has its own individual base, without EU law, EU law principles or a civil code approach influencing, upsetting and confusing it. That applies both to the principle of the supremacy of EU law and the general principles of EU law, and to the ability of our courts to revisit earlier judgments so that they are based on what we can loosely call UK law. It is an extremely sensible approach.
The SNP, as so often, becomes very confused in the European debate, because it wants, and makes its case for, greater sovereignty for Scotland, until it hands it all over to the European Union. The SNP wants independence from the Westminster Parliament, to which it makes a very noble contribution: I see in his place the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), who certainly made a fine contribution as its leader here. So SNP Members make a contribution here, but they want to leave here to hand it to Brussels. That seems to me to be the definition of eccentricity, and something without a logical base.
What this Bill does is give power to the devolved authorities. They will be able to take retained EU law and do with it as they please. They can keep it, they can revoke it, they can amend it, but they cannot extend it. Why can it not be extended? That is a point that has been raised, and it is one about which people have some concern, because this is technical. This is turning the status quo into domesticated law. If people want to
make the political argument for extending laws, they have the ability to do that where it is devolved. They have the power to do it, but it is not this Bill. Likewise, in this Parliament, if we wish to extend the regulations, we have the ability to do so. That brings me to an entirely spurious point that is being made.
The UK has a very strong global reputation for producing good regulation. This matters, because we want to encourage businesses from all over the world to produce, manufacture and sell in the UK market. That helps to create jobs in each of our constituencies, to increase prosperity and to drive growth here in the UK. In order to do that, businesses need certainty, so they want to have a transparent regulatory process that includes consultation, with both businesses and consumer organisations, and the parliamentary scrutiny that is important to help reduce the risk of unintended consequences.
We know that producing good regulation, drafting changes and consulting on those changes can take time. We also know, and it is important to say again, that the
Bill in itself does not repeal all EU law. It just introduces a sunset clause for the majority of that law. The sunset clause has been set for the end of this year, and anyone who has worked on detailed regulation knows that is a very short period of time. However, tight deadlines focus minds. The Bill provides for an extension mechanism for specified pieces of EU law until 2026, and for some retained EU law to be preserved and incorporated in domestic law, where needed.
I heard what the Minister said about the dashboard, which is a helpful audit, and I have looked closely at amendment 36 and understand where it is coming from, but much more important to delivering the Bill is how it will be implemented. I therefore ask four things of Ministers. First, I urge them to set out, clearly and as quickly as possible, which regulations will have the 2023 sunset. I urge them not to be afraid of using the option to extend to 2026, where necessary. I urge them to ensure that the protections for consumers are not inadvertently dropped during this process, and to look across Whitehall at all consumer legislation. Finally, I urge them to make sure that any new or amended consumer legislation is properly introduced in an orderly way, with proper consultation and scrutiny.
In a nutshell, as the hon. Lady has already said, we do not know what thisthe Bill covers, and neither do the Government. The Government’s dashboard lists just over 2,400 EU-derived laws; the former Minister, the hon. Member for Watford (Dean Russell), who is no longer in his place, admitted that that was,
“an authoritative, not comprehensive, catalogue”
of the legislation. The National Archives, based in Kew in my constituency, has identified significant omissions in the Government’s dashboard, and the Financial Times has suggested the true total could be closer to 4,000 pieces of legislation. We simply do not know what we are voting on today.
Amendment 36 would ensure that the Government produced a definitive list of legislation to be revoked or reformed through this Bill, to ensure that the scope of
the work is clear to everyone. As things stand, there is a risk that some laws will fall automatically if the relevant Department has not identified them.
The amendment would also ensure that Parliament has the ultimate say on which legislation is affected by the Bill, giving Members of this House the power to amend the revocation list by adding or removing instruments. It is important to remember that, when we talk about retained EU law, we are talking about legislation that guarantees a host of rights, including workers’ rights such as holiday pay and maternity pay, data protection rights and legislation that determines our animal welfare and food quality standards. Yet we could see huge swathes of law revoked or reformed with no parliamentary scrutiny or consultation—and it is not just parliamentarians who are concerned; hundreds of my constituents have emailed me in support of this amendment.
This Bill is simply an undemocratic power grab by the Conservative Government. It is not acceptable for the Government to make arbitrary but legally binding decisions on behalf of the whole country without following a proper legislative process. This is a Bill completely devoid of Parliamentaryparliamentary oversight and accountability, and it will be our constituents who suffer from declining standards as a result.
Liberal Democrats are extremely concerned about the potential for environmental deregulation through this Bill, which the Royal Society for the Protection of Birds has described as an “attack on nature”. The UK is already one of the most nature-depleted countries in the world, and the Government cannot afford to relax regulation. We urgently need better regulation in this area and better resources to implement and monitor that regulation, yet the agencies responsible for regulating our air and water quality and preventing pollution have been rendered toothless by this Government.
Just this week, in my constituency, Thames Water has announced plans to replace water from the River Thames at Teddington Lock with treated sewage in times of drought. Who is going towill be monitoring the water quality to ensure that that treated sewageit maintains a high water quality standard? There is huge concern among my constituents. The last thing they want to hear is that the existing regulations to maintain water quality standards through the River Thames will just be scrapped and that whatever is put in place to replace it will not have adequate parliamentary scrutiny. What arewill the Government going to do to ensure that agencies responsible for monitoring Thames Water are held to account? I hope the Minister in their closing remarks will address the concerns already raised in this debate about how the Government will ensure that thisthe Bill does not put our environment further at risk.
I am also concerned that thisthe Bill will cause yet more economic damage and uncertainty for businessbusinesses and households at the worst possible time. By setting a deadline of the end of 2023 for thousands of pieces of legislation to be scrapped, the Government are creating an unnecessary cliff edge. It is unrealistic for officials to trawl through and effectively scrutinise thousands of laws, and enact replacements, in less than 12 months.
When I am out and about talking to businesses and business groups, they tell me that the one thing our economy needs right now is certainty. How can they
possibly have that certainty when so many of the regulations that underpin their operations are just going to be scrapped? The other thing they tell me is that they like a clear regulatory environment, as it creates a competitive playing field and gives consumers confidence. What they really like is parliamentary scrutiny of that regulation, which they believe creates good regulation and good law.
It is likely that many key sectors will be left in legislative confusion, with EU laws scrapped and no UK laws to take their place. After years of low growth due to Conservative incompetence, and months of worsening business conditions, the last thing businesses need is increased barriers to trade and more uncertainty—yet that is what this Bill will bring.
To conclude, the Bill is an undemocratic power grab that gives Conservative Ministers the power to eliminate vital pieces of legislation. There is no comprehensive list of legislation that will be affected by the Bill, and Parliament has no say over its scope. The Liberal Democrats will vote against the Bill. It is unnecessary and unrealistic, and it will serve only to cause more uncertainty while potentially eliminating or watering down key protections for our constituents. At the very least, I urge the Government to accept amendment 36 to increase the transparency of the laws that are impacted by the Bill and ensure that Parliament is not sidestepped in such an important process.
The Bill is a bonfire of our rights and protections. The haste with which it is being brought through Parliament and the 2023 sunset clause put us in serious danger of things being accidentally revoked and our rights and protections being lost. The amendments proposed make a bad Bill better, and the Government would be wise to support them. If the Government press ahead with the Bill unamended, they will have to explain to the House when any rights and protections are lost after 31 December, and they cannot then say that they were not warned.
The proponents of amendment 36 suggest that the clause 1 sunset procedures would somehow diminish the role of this House. However, the exercise of reviewing retained EU law, which will precede the automatic revocation through the clause 1 provisions, will be carried out by Ministers who are responsible and answerable to the House; it will not be a clandestine exercise carried out in secret. The Government dashboard contains a catalogue of retained EU law and will be constantly updated. There will therefore always be a visible, readily available snapshot of what law is to be subject to the sunset provisions. Those provisions are absolutely necessary for the proper functioning of the Bill. Without them, the process of regularising the domestic statute book would be significantly impeded. I am sure that is not what the amendment intends.
It is also important to note that the sunset provisions do not affect primary legislation implementing EU directives; they affect only direct EU law, which of course was imposed without any input from the House, and secondary legislation.
In the last few days, many hon. Members will have received campaign emails suggesting that valuable rights acquired under EU law will somehow be jeopardised by the Bill. The suggestion appears to be that they will be swept away under the sunset provisions as a consequence of the lack of intervention by ill-intentioned Ministers. That completely ignores the fact that, as many hon. Members have said, many rights enjoyed in this country, including those relating to employment, equality or the environment, are the product of domestic law, which exceed the provisions of EU law. It also ignores the fact that Ministers are always answerable to the House, and I have no doubt that Mr Speaker would be quick to allow urgent questions if there were real concern that
important rights were to be prejudiced by the application of the sunset provisions. Of course, we have heard the undertakings that my hon. Friend the Minister has given from the Dispatch Box.
In short, clause 1 is an important provision that will restore the integrity of the domestic legal system. The sunset provisions will ensure that that happens swiftly and efficiently. Amendment 36 would significantly impede the process established by the clause and should therefore be rejected.
The TUC has highlighted that rights that could be lost through the Bill include rights relating to holiday pay, agency workers, pregnant workers, maternity and parental leave and terms and conditions for workers whose employment is transferred to another employer, so I support amendments 19 and 20, which seek to safeguard protections for workers, because it is vital that we protect workers’ rights.
The Bill also puts environmental protections in peril, and I support amendments 21 and 22, which seek to address this. The Wildlife Trust has expressed profound concern that the Bill risks weakening vital protections for nature when more than ever we need stronger legislation and urgent action to reverse the decline in biodiversity and reduce greenhouse gas emissions. Greener UK and Wildlife and Countryside Link have expressed the opinion that the Bill will derail the Government’s nature and climate ambitions. The Government should be listening to these views from the sector, but clearly they are not. By their actions, the Conservatives are making a mockery of their own manifesto commitment that Britain would have
“the most ambitious environmental programme of any country on earth.”
It is extraordinary that the scope of the Bill includes giving Ministers the right to scrap a wide range of legal protections relating to health and safety, including the regulation of the safety of children’s toys and of electrical equipment and the Control of Asbestos Regulations 2012. I support amendments 24 and 25, which seek to safeguard these laws. Asbestos is an extremely dangerous substance and it is a matter of real concern that the Government might seek to water down control of it. I pay tribute to the work of the Merseyside Asbestos Victim Support Group and the wider support group forum for the vital work they do in supporting victims of asbestos. Previously, when I asked the Government whether they had made an assessment of the potential impact of this Bill on asbestos-related legislation, their response was vague and talked of removing disproportionate burdens for business and simplifying the regulatory landscape. That is a matter of real concern. I am extremely concerned about what deregulation could mean in relation to asbestos, and I ask the Minister today for a guarantee that controls on asbestos will not in any circumstances be weakened.
It is shocking that the report by the Regulatory Policy Committee gave the Government’s impact assessment of this Bill an overall red rating, meaning that the impact assessment is not fit for purpose because it has made no attempt to quantify the impacts of the individual pieces of legislation being sunsetted and no commitment has been made to do this later in the process. This Bill is an incredibly damaging piece of legislation that poses an enormous threat to many of the rights on which we rely. I urge Members to support the amendments that would remove the worst aspects of it, but ultimately I call on the Government to withdraw it.
Proceedings interrupted (Programme Order, 25 October 2022).
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Amendment proposed: 28, page 1, line 6, at end insert—
“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—
(a) would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament, or
(b) could be made in subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”—(Alyn Smith.)
This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under Clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of the Scottish Parliament.
Question put, That the amendment be made.
Amendment proposed: 19, page 1, line 9, at end insert—
“(2A) Subsection (1) does not apply to the following instruments—
(a) Management of Health and Safety at Work Regulations 1999,
(b) Children and Young Person Working Time Regulations 1933,
(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,
(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,
(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,
(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,
(g) Information and Consultation of Employees Regulations 2004,
(h) Road Transport (Working Time) Regulations 2005,
(i) Working Time Regulations 1998,
(j) Agency Workers Regulations 2010,
(k) Maternity and Parental Leave etc Regulations 1999,
(l) Trade Secrets (Enforcement etc) Regulations 2018 and
(m) The Health and Safety (Consultation with Employees) Regulations 1996.”—(Justin Madders.)
This amendment would exclude certain regulations which provide for workers’ protections from the sunset in subsection (1).
Question put, That the amendment be made.
Amendment proposed: 36, page 1, line 12, at end insert—
“(3A) The Secretary of State must, no later than three months before the date specified in subsection (1), publish a list of all legislation being revoked under this section (the “revocation list”) and lay a copy before Parliament.
(3B) With each update of the revocation list up to the date specified in subsection (1), the Secretary of State must lay an updated copy of the revocation list before Parliament.
(3C) Any legislation not included in the revocation list, as updated, on the date specified in subsection (1) is not revoked.
(3D) At any time before the date specified in subsection (1), the House of Commons may by resolution amend the revocation list by adding or removing instruments specified in the resolution, and the Secretary of State must accordingly lay the updated revocation list before Parliament.
(3E) At any time before the date specified in subsection (1), the House of Lords may by resolution propose amendment of the revocation list by adding or removing instruments specified in the resolution.
(3F) If the House of Commons does not pass a motion disagreeing with a resolution of the House of Lords under subsection (3E) within ten days of the date of that resolution, the Secretary of State must amend the revocation list in accordance with the resolution of the House of Lords and lay the updated version before Parliament.
(3G) If the Secretary of State does not amend the revocation list when required to do so by paragraphs (3D) or (3F) before the date specified in paragraph (1), the revocation list will be deemed to have been amended as specified in the resolution of the relevant House of Parliament, and the relevant legislation will be treated as though the change has been made.
(3H) Any legislation to which section (3C) applies is not to be considered as either retained EU law or assimilated law.”—(Stella Creasy.)
This amendment would require the Government to publish an exhaustive list of every piece of legislation being revoked under the Sunset Clause, and allow for Parliamentary oversight of this process so that it is the House of Commons which has the ultimate say on which legislation is affected.
Question put, That the amendment be made.
Clause 2
Extension of sunset under section 1
Amendment made: 1, page 2, line 13, at end insert—
“(2A) Any reference in regulations under subsection (1) to an instrument or description of legislation is, unless otherwise stated, to the instrument or description of legislation as it subsists immediately before the time when the revocation under section 1(1) would otherwise apply in relation to it.”—(Ms Ghani.)
This amendment clarifies that regulations under subsection (1) that specify an instrument or description of legislation are to be read as referring to the instrument or description as it has effect immediately before the time when the sunset would otherwise apply in relation to it.
Clause 6
“Assimilated law”
Amendment made: 3, page 4, line 2, leave out clause 6.—(Ms Ghani.)
This amendment is consequential on NC1.
Clause 7
Role of courts
Amendments made: 6, page 4, line 19, at end insert—
“(za) in paragraph (b)—
(i) in sub-paragraph (i) omit the words from “otherwise” to “1998)”;
(ii) after sub-paragraph (ii) (and on a new line) insert “(except, when sitting as a court of appeal in relation to a compatibility issue or devolution issue, so far as there is relevant domestic case law which modifies or applies the retained EU case law and is binding on the court);”;”.
This amendment is a drafting change, bringing together provisions relating to the High Court of Justiciary.
Amendment 7, page 5, line 11, after “section” insert—
““compatibility issue” has the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995;
“devolution issue” has the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998;
“relevant appeal court” means—
(a) the Court Martial Appeal Court,
(b) the Court of Appeal in England and Wales,
(c) the Inner House of the Court of Session,
(d) the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983,
(e) the Lands Valuation Appeal Court, or
(f) the Court of Appeal in Northern Ireland;”.
This amendment is consequential on Amendment 6.
Amendment 8, page 5, leave out lines 20 to 32.
This amendment is consequential on Amendment 7.
Amendment 9, page 6, leave out lines 6 and 7.
This amendment is consequential on Amendment 6.
Amendment 10, page 6, line 9, leave out “relevant”.
This amendment, and Amendments 10 to 13, enable a reference to be made to the High Court of Justiciary in all relevant cases.
Amendment 11, page 6, line 27, leave out “a relevant” and insert “the appropriate”.
See the statement for Amendment 10.
Amendment 12, page 6, line 30, leave out from “appropriate” to “point” in line 33 and insert
“appeal court” means, in relation to proceedings before a court or tribunal, the court mentioned in subsection (10) to which an appeal from the court or tribunal in those proceedings on the”.
See the statement for Amendment 10.
Amendment 13, page 6, line 36, at end insert—
“(10) The courts referred to in subsection (9) are—
(a) the Court Martial Appeal Court;
(b) the Court of Appeal in England and Wales;
(c) the Inner House of the Court of Session;
(d) the High Court of Justiciary when sitting as a court of appeal or on a reference under section 123(1) of the Criminal Procedure (Scotland) Act 1995;
(e) the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983;
(f) the Lands Valuation Appeal Court;
(g) the Court of Appeal in Northern Ireland.”
See the statement for Amendment 10.
Amendment 14, page 7, leave out lines 24 and 25.
This amendment is consequential on Amendment 6.
Amendment 15, page 7, line 27, leave out “relevant”.
This amendment enables a reference under new section 6B to be made to the High Court of Justiciary in all relevant cases.
Amendment 16, page 7, line 33, leave out “a relevant” and insert “the appropriate”.
This amendment is consequential on Amendment 15.
Amendment 17, page 9, line 30, leave out paragraph (b). —(Ms Ghani.)
This amendment is consequential on Amendment 8.
Clause 14
Powers to restate or reproduce: general
Amendment made: 2, page 17, line 24, leave out
“, a reference to restatement includes reproduction”
and insert ““restatement”—
“(a) in relation to section 12, has the same meaning as in that section;
(b) in relation to section 13, has the same meaning as in that section but also includes reproduction;”.—(Ms Ghani.)
This amendment clarifies that references to “restatement” in this clause have the same meaning as in clause 12 or 13 (as well as including, in relation to clause 13, reproduction).
Clause 22
Commencement, transitional and savings
Amendments made: 4, page 22, line 21, leave out paragraph (b) and insert—
“(b) section (“Assimilated law”)(1), (2) and (4) to (7);”.
This amendment is consequential on NC1.
Amendment 5, page 23, line 7, at end insert—
“(7) The amendments made by Schedule (“Assimilated law”: consequential amendments) do not apply as regards any time at or before the end of 2023.”—(Ms Ghani.)
This amendment provides that the amendments made by the Schedule inserted by NS1 do not apply as regards any time at or before the end of 2023.
New Schedule 1
“Assimilated law”: consequential amendments
European Union (Withdrawal) Act 2018
1 (1) The European Union (Withdrawal) Act 2018 (as amended by this Act) is amended as follows.
(2) In section 5 (exceptions to savings and incorporation), in subsections (A2) and (8), for “retained direct EU” substitute “assimilated direct”.
(3) In section 6 (interpretation of retained EU law)—
(a) in the heading for “retained EU” substitute “assimilated”;
(b) in subsection (3)—
(i) for “retained EU” substitute “assimilated”;
(ii) in paragraph (a) for “retained” (in the first place it appears) substitute “assimilated”;
(c) in subsections (4) to (5ZA), for “retained” (in each place it appears) substitute “assimilated”;
(d) in subsection (6), for “retained EU” substitute “assimilated”;
(e) in subsection (7)—
(i) before the definition of “higher court” insert—
““assimilated case law” means—
(a) assimilated domestic case law, and
(b) assimilated EU case law;
“assimilated domestic case law” means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before IP completion day and so far as they—
(a) relate to anything to which section 2 or 3 applies, and
(b) are not excluded by section 5 or Schedule 1,
(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);
“assimilated EU case law” means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before IP completion day and so far as they—
(a) relate to anything to which section 2 or 3 applies, and
(b) are not excluded by section 5 or Schedule 1,
(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);
“assimilated law” means anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2 or 3 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);”;
(ii) omit the definitions of “retained case law”, “retained domestic case law”, retained EU case law” and “retained EU law”.
(4) In section 6A (references on retained case law by lower courts or tribunals), for “retained” (in each place it appears, including the heading) substitute “assimilated”.
(5) In section 6B (references on retained case law by UK or devolved law officers), for “retained” (in each place it appears, including the heading) substitute “assimilated”.
(6) In section 6C (interventions on retained case law by UK or devolved law officers), for “retained” (in each place it appears, including the heading) substitute “assimilated”.
(7) In section 6D (incompatibility orders), in subsection (1)(a) and (b), for “retained direct EU” substitute “assimilated direct”.
(8) In section 7 (status of retained EU law)—
(a) in the heading for “retained EU” substitute “assimilated”;
(b) in subsection (4A) for “Retained direct EU” substitute “Assimilated direct”;
(c) in subsection (5)—
(i) for “retained EU” (in each place it appears) substitute “assimilated”;
(ii) in paragraph (b), for “retained” (in the first place it appears) substitute “assimilated”;
(iii) in paragraphs (e) and (f), for “retained direct EU” substitute “assimilated direct”.
(d) omit subsection (6).
(9) In section 20(1) (interpretation)—
(a) before the definition of “Charter of Fundamental Rights” insert—
““assimilated direct legislation” means any direct EU legislation which forms part of domestic law by virtue of section 3 (as modified by or under this Act or by other domestic law from time to time, and including any instruments made under it on or after IP completion day);
“assimilated direct minor legislation” means any assimilated direct legislation which is not assimilated direct principal legislation;
“assimilated direct principal legislation” means—
(a) any EU regulation so far as it—
(i) forms part of domestic law on and after IP completion day by virtue of section 3, and
(ii) was not EU tertiary legislation immediately before IP completion day, or
(b) any Annex to the EEA agreement so far as it—
(i) forms part of domestic law on and after IP completion day by virtue of section 3, and
(ii) refers to, or contains adaptations of, any EU regulation so far as it falls within paragraph (a),
(as modified by or under this Act or by other domestic law from time to time);”;
(b) in the definition of “enactment”, in paragraph (h), for “retained direct EU” substitute “assimilated direct”;
(c) omit the definition of “retained direct EU legislation”;
(d) in the definition of “subordinate legislation” for “retained direct EU” substitute “assimilated direct”.
(10) In section 21(1) (index of defined expressions), in the table—
(a) after the entry for “Article (in relation the Treaty on European Union or the Treaty on the Functioning of the European Union)”, insert—
| Assimilated case law | Section 6(7) |
| Assimilated direct legislation | Section 20(1) |
| Assimilated direct minor legislation | Section 20(1) |
| Assimilated direct principal legislation | Section 20(1) |
| Assimilated domestic case law | Section 6(7) |
| Assimilated EU case law | Section 6(7) |
| Assimilated law | Section 6(7)” |
(b) omit the entries for “Retained case law”, “Retained direct EU legislation”, “Retained direct minor EU legislation”, “Retained direct principal EU legislation”, “Retained domestic case law”, “Retained EU case law” and “Retained EU law”.
(11) In Schedule 1 (further provision about exceptions to savings and incorporation), for “retained EU” (in each place it appears) substitute “assimilated”.
(12) In Schedule 4 (powers in connection with fees and charges), in paragraph 7(1)(b) (power to modify pre-exit fees or charges), for “retained EU” substitute “assimilated”.
(13) In Schedule 5 (publication and rules of evidence), in paragraph 4(5) (definition of “relevant matter” for power to make provision about judicial notice and admissibility), for paragraph (a) substitute—
“(a) assimilated law,”.
(14) In Schedule 7 (regulations)—
(a) in the italic heading before paragraph 9, for “retained EU” substitute “assimilated”;
(b) in paragraphs 21, 23 and 28, for “retained EU” (in each place it appears) substitute “assimilated”.
(15) In Schedule 8 (consequential etc provision)—
(a) in the italic heading before paragraph 1, for “retained direct EU” substitute “assimilated direct”;
(b) in paragraphs 3(1), 8(2), 11A(2), 11B(2) and 12(2)(b), for “retained direct EU” (in each place it appears) substitute “assimilated direct”;
(c) in paragraphs 7, 16(3)(b) and 45(2)(b)(i) and (ii), for “retained EU” substitute “assimilated”;
(d) in paragraphs 11A(3), 11B(3) and 30—
(i) for “retained direct minor EU” (in each place it appears) substitute “assimilated direct minor”;
(ii) for “retained direct principal EU” (in each place it appears) substitute “assimilated direct principal”.
This Act
2 (1) This Act is amended as follows.
(2) In section 8 (compatibility), for “retained direct EU” (in each place it appears) substitute “assimilated direct”.
(3) In section 14 (general provision about powers to restate or reproduce), in subsection (9)(a) for “retained direct EU” (in each place it appears) substitute “assimilated direct”.
(4) In section 21 (interpretation)—
(a) in subsection (1), in the definitions of “enactment” and “subordinate legislation”, for “retained direct EU” substitute “assimilated direct”;
(b) in subsection (2), for “retained direct EU” (in each place it appears) substitute “assimilated direct”.”—(Ms Ghani.)
This new schedule makes amendments to the European Union (Withdrawal) Act 2018 and the Bill that are consequential on the renaming of bodies or types of law by NC1.
Brought up, and added to the Bill.
Third Reading
King’s consent signified.
Bill read the Third time and passed.
