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My Lords, my Amendment 39 is buried among the government amendments in this group. I will speak to it and in doing so elaborate some questions I have concerning the government amendments. I thank the Minister—the amendments sounded better when he explained them than when I read them. I liked that he kept repeating that it will require primary legislation to change what I shall describe in a shorthand way as policy-making legislation, which is what my amendment is about.
My amendment is short and concerns life after Clause 7—life after implementation of the Bill—which is this Parliament’s legislative future. I hope this group of amendments paves the way to ensure that Parliament has a principal role, which is not how I took it when I read them. As the Minister said, my amendment provides that retained EU law enacted in the EU by co-decision—the ordinary legislative procedure—may be modified only by an Act of Parliament. I know that the Minister knows that “the ordinary legislative procedure” is just the new name for co-decision under the Lisbon treaty.
I selected that legislation, which is a subset that I spoke about in Committee, quite simply because the European Parliament had a full scrutiny and amending role in making the legislation and in any amendments to it, and I do not see why in future this Parliament should be in a lesser place than the European Parliament. The Minister has perhaps gone some way towards pointing out that that might be the case, but I will read what he said carefully to make sure. I have covered the full range of matters covered by co-decision. They are things such as company law, financial services and other issues that were not in the sensitive areas that were covered in Amendment 11 which we voted through last Wednesday. My amendment covers directives as well as direct EU regulations. It is important that policy-making legislation is not changed too easily. Again, the Minister may have sown seeds to put my mind at rest on that, but I want to examine what he said more carefully.
Another reason why it is very important for this legislation to come to Parliament to be changed is that, despite the good efforts of the EU committees, there are quite large swathes of legislation about which this Parliament is relatively ignorant. I do not say that disparagingly; it is just the way the law was made. As we go forward, it is very important that this Parliament clearly understand laws that affect major industries, even if subsequently it chooses that some of them are to be delegated to regulators. We have a system of delegation. Sometimes there is regrettably rather too much delegation, but it is very clear that if any of that is going on, it needs to have full scrutiny.
My final point relates to where we are going to use existing legislation to amend retained EU legislation after it has been converted. The legislation that we might use was not made to cover legislation that used to be done in the EU because it was well known that those policy areas were reserved to the EU. Extending the scope of that legislation so that policy-making legislation can be amended by secondary legislation is extending it further than was contemplated, and it may go beyond the reasonable expectations of that legislation. Constitutionally, that gives me a problem. Perhaps some members of the Constitution Committee can mention this. I have circled paragraph 3 of Schedule 8, which refers to powers on subordinate legislation before exit day,
“as being capable of being exercised to modify … any retained direct EU legislation”.
I submit that none of that existing legislation could have been made in contemplation of amending that type of legislation. Unless it was clearly elaborated that that was the case, I am unhappy with that provision as it originally stood and as it now stands. I am a little more unhappy with the amendment to Schedule 8 because it has been stretched to cover the rights that are going to be retained by virtue of Clause 4, which was not in the original paragraph 3 of Schedule 8. I am a little worried about having rights taken away by legislation that was not made in contemplation of taking those rights away. Those are the reservations I still have and I would welcome the opportunity to discuss with the Minister whether we can sort them out and return to this at Third Reading.