My Lords, I am delighted that we have reached this group, which concerns restatement powers. The two most radical
amendments in this group will probably capture the Committee’s imagination more than my more modest ones; I look forward to hearing from the authors of the amendments on whether Clauses 12 and 13 should stand part of the Bill.
I want to speak briefly to the amendments in my name. Amendment 102 would require
“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them.”
This would require all
“relevant national authorities … to publish the results of the consultation.”
Why is this necessary? Under Clause 12, a relevant national authority
“may by regulations restate, to any extent, any secondary retained EU law.”
Clause 14 states:
“A restatement may use words or concepts that are different from those used in the law being restated”
and
“may make any change which the relevant national authority considers appropriate for … resolving ambiguities … removing doubts or anomalies … facilitating improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).”
Given the debates that we have had, this will increase the uncertainty and lack of clarity. I am grateful to the Law Society of Scotland, which proposed Amendment 102. Its purpose is that such changes, which may obviously be considerable, should require to be consulted on.
Amendment 105 would require
“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.”
I will not rehearse this. It is very similar under Clauses 13 and 14 to what I referred to under Amendment 102. However, as these changes would again be major, they should be consulted on, as is laid out in this amendment. I beseech my noble friend Lord Hamilton of Epsom that, if he is seeking clarity and certainty and wants a short deadline, he must share my concern that the clauses dealt with in this group will have quite the contrary effect to that which he referred to.
Amendment 107 has a similar requirement on a national authority to consult all the national authorities to publish the results of the consultation. Clause 13(8) states that:
“A relevant national authority may by regulations reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for sections 3 to 5 of this Act.”
Again, this is a significant regulation-making power which could affect a large number of individuals and businesses. Surely my noble friend and the Government would wish that they and the devolved Administrations consult before making such wide-ranging regulations as those envisaged in this clause. Therefore, under the terms of this amendment, a Minister of the Crown would be obliged to consult a devolved Administration before making regulations concerning devolved matters.
Amendment 108 looks to extend the statutory deadline from 23 June 2026 to 31 December 2028, a mere 18 months,
“within which a restatement of assimilated law or reproduction of sunsetted retained EU rights, powers, liabilities may be made.”
It cannot be right to have such a short deadline giving such wide-ranging powers. Therefore, in my humble submission, the deadline needs to be extended to allow sufficient time for the exercise of going through what the impact on the Government, the devolved Administrations and all the interested parties would be. A better and more realistic deadline, capable of being met, would be 31 December 2028.
Amendment 109 is purely consequential, extending the deadline from the end of 2023 to 31 December 2028. I am delighted to say that Amendment 110 would have a similar effect by leaving out Clause 14(7), which states:
“The provision that may be made by regulations under section 12 or 13 may be made by modifying any enactment.”
That is an extremely broad Henry VIII power to empower Ministers to amend any enactment. It is identified by the Secondary Legislation Scrutiny Committee in its 28th report, Losing Control?, as too broad a power. Therefore, Amendment 110 gives my noble friend and the Government the opportunity to explain why such a broad power is necessary.
I hope that my noble friend will look extremely favourably on this small but perfectly formed group of amendments. With those few remarks, I beg to move.