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.
Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our
laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.
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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.