European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 — House of Lords, 2019-03-27
Topic: International Affairs
David Pannick (Crossbench, Unknown): My Lords, I support the Motion in the name of the noble Lord, Lord Callanan, and I thank him for addressing the legal question I raised yesterday. I am satisfied that these regulations are valid; the legal issue is whether exit day is specified in the statutory instrument when it refers to two possible dates. I agree that that is so: it is specified, and for this reason. It seems to me that the purpose of the power to amend the date of our exit, as expressly stated in Section 20(4)(a) of the 2018 Act, is to ensure that domestic law on exit day is consistent with our treaty obligations. This SI accurately implements in domestic law the current treaty obligations in the light of the extension of the Article 50 period. Unhappily, that still involves more than one possibility as to the future, and the SI accurately reflects the reality under EU law There is a risk that a court might take a different view on the validity of the SI; I would not expect it to do so. I am, however, surprised that Ministers did not adopt the simpler, risk-free option of specifying 12 April as exit day, since they have ample powers further to amend exit day if appropriate. That is especially so when there is a third possibility recognised under the EU decision to which the SI refers. The EU decision says that if the withdrawal agreement is not approved by the House of Commons by this Friday, the Article 50 period is extended until 12 April. It adds: "In that event, the United Kingdom will indicate a way forward before 12 April 2019 for consideration by the European Council" If that occurs, and if agreement is then reached on the way forward, it may involve an exit day different from either 12 April or 22 May: that, of course, would require another SI I understand that the noble and learned Lord, the Advocate-General for Scotland, will be replying to this debate for the Government. I have a question for him which builds on the question put at the end of her speech by the noble Baroness, Lady Ludford. As a matter of domestic law, exit day is highly significant under the 2018 Act for various purposes, but one of the central functions of exit day is given accurately in paragraph 6.5 of the Explanatory Memorandum: "Section 1 of the 2018 Act repeals the European Communities Act 1972 on ‘exit day’, whilst the saving and incorporation of EU law into domestic law (known as "retained EU law") … take effect on and after ‘exit day’" Various provisions of the 2018 Act were brought into force under Section 25 of that Act when it was passed. Those provisions include Section 20, which defines exit day and confers the power exercised in this statutory instrument to amend exit day. Also commenced and brought into force when the 2018 Act was passed were Sections 8 to 11 and other provisions which confer powers on Ministers to make regulations such as those we have been scrutinising in recent weeks. There have also been more recent commencement regulations, such as SI 808/2018, which provide for the bringing into force of other provisions of the 2018 Act.