My Lords, I will speak to the proposal that Clause 12 should not stand part, which is in my name and those of my noble friend Lord Fox and the noble Baroness, Lady Chapman. I will also speak to the proposal that Clause 13 should not stand part, and to Amendment 111, which would require consultation, reasoning, et cetera for proposed restatement regulations.

My noble friend Lady Humphreys quoted the powerful view of the Delegated Powers Committee that Clauses 12 and 13 should be removed from the Bill because they inappropriately delegate legislative powers and appropriate powers that ought to belong to Parliament and be achieved subject to specific primary legislation. That committee brought to our attention, or reminded us of, the delegated powers memorandum, which says:

“This power cannot substantively change the policy effect of legislation.”

The DPRRC says:

“We doubt whether this is correct. Where there is ambiguity— allowing Ministers to make changes to resolve ambiguities is one of three factors that a restatement is supposedly able to address—

“as to whether policy A or policy B is intended and the legislative restatement emphatically resolves in favour of policy A, the restatement has … made a firm policy choice”.

That view of our committee makes sense. It invited us to ask the Government to explain why none of the law that can be restated under the powers in Clause 12 would instead merit being restated in primary legislation. I hope the Minister will do so in his response.

The committee also draws attention to the powers that Ministers have, I think in Clause 14(6), to reproduce the effects of the supremacy of EU law, the retained general principles of EU law and retained EU case law, to ensure that the restatement has the same practical outcome that existed previously. These three elements are the ones that are otherwise abolished by the Bill; we debated that today in relation to Clauses 3 to 5. So the Government want to bring back, under Clause 14(6), the power for Ministers to reproduce the effects of the things they are abolishing, to ensure that the restatement has the same practical outcome that existed previously.

The DPRRC comments:

“This power may give rise to significant policy questions”,

but they are given to Ministers to answer rather than Parliament. I add to that a suggestion that it will also create legal confusion, because, on the one hand, you have abolished these three elements—supremacy, general principles and retained rights—yet, on the other, Ministers can bring them back. I have not quite worked out how that is supposed to work.

My noble friend Lady Humphreys quoted the fact that the powers in Clause 12 are completely “open-ended”, with

“no requirement for consultation … criteria … or … pre-conditions”.

That explains our Amendment 111, which again seeks to repeat the elements we constantly introduce.

The other thing that Clauses 12 and 13 give to Ministers, in restating REUL in secondary legislation, is the power to use different words or concepts from the original instrument and to make any change considered appropriate. That is rather worrying, and requires the Minister to explain what is meant by “restatement” if the restated law will be different in concept from the original law. To what extent can different words be used before the restatement changes into a new and distinct law? It is no longer a restatement; because different words and concepts have been used, it becomes, in effect, a new and distinct law. When does it morph into a new law, having started off as a restatement? There is quite some confusion on that.

Finally, if I have understood correctly the email from, and blog of, the distinguished legal commentator Joshua Rozenberg, it appears that he has been highlighting the fact that the pensions of some 11,000 serving or former part-time judges were going to be abolished because they relied on EU law. But apparently the Deputy Prime Minister, the Secretary of State for Justice, announced that he was going to save these pensions and that there was no intention to grab them back from affected judges.

I presume that this is the first announcement we have had of what is to be preserved under the Bill. Perhaps the Minister could confirm that. Obviously, I think it is a good thing. I do not think that judges’ pensions, any more than former MEPs’ pensions, should be whipped away. I suspect the Minister might agree on that point. That is a good thing, but we are still fighting for confirmation on things such as water safety, air quality, product safety, employment rights and everything else. When are we going to hear about what is going to be preserved from those other areas of deep concern? I am very pleased for judges, and indeed gratified, but it seems quite odd that we have had an announcement about that but we do not know whether anything else is going to be preserved. Perhaps the Minister could enlighten us in his reply.