European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Bowles of Berkhamsted]

I would quite like to complicate matters a little further. It is unfortunate that the word “snapshot” was used, because, if we look at the way in which European legislation comes into force and effect, we see that it is a bit more like a movie in that it keeps on going. Certainly, we may well have implemented some things and they will then come into force, but it would not be on a single date beyond because lots of delegated Acts and implementing regulations would come in progressively over a period of time. I am curious as to what happens when we are straddling that. Will we then take the implementing regulations and delegated Acts on something that we have already adopted into our law, or will we make up those ourselves?

[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Mackay of Clashfern, says that he is confused about the transition; my worry is that the people on the Bench in front of him remain confused about what a transition period means—but let us put that to one side.

I want briefly to broaden the discussion to regulations—I know that the amendment refers to directives, but it is probing and there is an important issue here which Ministers may have heard. The clinical trials regulation was mentioned at Second Reading. Like many of the measures that we are discussing today, that would have been adopted but not implemented, either because it was complicated or it took a lot of work to get everyone lined up to it—so it would not have reached its implementation date by the time we left. It might well reach that date during the transitional period—which raises another question and, probably, another Bill. If it is a standstill only on measures that have come in by the day we leave, there will be important issues to address such as the clinical trial regulations and those others that we have heard about today. They will not count as retained law, leaving us reliant on regulations that rapidly become obsolete—those relating to cars I know less about, but certainly in respect of those relating to clinical trials it would end our ability to participate. All such regulations are about not just anonymity but the way data are held. It will happen very quickly: if we are not on the same basis as the rest of Europe, our ability to be involved in those could end quite promptly. That is obviously important to patients, but also to researchers and, indeed, the pharmaceutical industry.

I wrote to the noble Lord, Lord Callanan, on 19 January and he replied very rapidly on 26 January. As we have heard today, he confirmed the Bill’s approach, which will bring over only regulations actually operative as we leave. That would exclude these clinical trial rules, for example, although we agreed them back in 2014. The letter that the noble Lord kindly wrote to me makes smoothing comments, if you like. It says, “Yes, we recognise the importance of close co-operation, we want UK patients to have access to innovative medicines, for which we need to be part of the same system, and we want the UK to be one of the best places to do science”. I turned over the page expecting the Lord Deben response, which would be to say what we are going to do about it. Unfortunately, at that point the letter stops. It says that we will discuss with the EU how to continue to co-operate in business trials but it fails to look at what will be needed, which is, I fear, a legislative process to make that happen.

[Lord Deben]

Will the noble Baroness be kind enough to make a distinction between these things? It seems to me that this is not a matter to discuss with the EU. The British Government could perfectly well say that where they have signed up to something already, they will in fact implement that. They could do this about regulations and directives if they wished to. They could do that in advance and would not have to say that they would have to discuss it with the European Union. That would help all of us and be an earnest of the Government’s good will.

[Baroness Hayter of Kentish Town]

I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

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Moved by

[Baroness Hayter of Kentish Town]

21: After Clause 3, insert the following new Clause—
“Future treatment of retained EU law
(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act insofar as this subordinate legislation meets the requirements in subsections (2) to (6).(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State. (4) Regulations under subsections (2) and (3) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.(5) The enhanced scrutiny procedure provided for by subsection (3) must include a period of consultation with the public and relevant stakeholders.(6) Regulations under this section may be used only to modify provisions of retained EU law listed in any schedule made under subsection (2) to the extent that such modification will not limit the scope of or weaken—(a) employment entitlements, rights and protection,(b) equality entitlements, rights and protection,(c) health and safety entitlements, rights and protection,(d) consumer standards, or(e) environmental standards and protection.”

[Baroness Hayter of Kentish Town]

My Lords, this amendment has support from across the House: it is supported by the noble Lords, Lord Warner and Lord Kirkhope of Harrogate, and the noble Baroness, Lady Smith of Newnham, who will be speaking after me. The objective of the amendment is pretty clear. It is to ensure that no reduction in rights which are being brought over can then take place without primary legislation. It is possible that there is a better way of achieving this; I am personally attracted by the proposals of the Constitution Committee, some bits of which we discussed earlier and some bits we will come to at another time.

It is worth rehearsing why we see the need for such protection for these standards. We are talking about protections and rights that cover—in these amendments —employment, equality, health and safety, consumer rights and the environment.

When we are in the EU, although regulations, for example, are not primary legislation, they are effectively ring-fenced or secured via our membership, which means that a Government cannot suddenly sweep in and sweep them away. However, once brought into domestic law under the Bill as it stands, they could be amended and, indeed, weakened by secondary legislation without consultation, when stakeholders can have their say, and without the Government having to take a Bill through Parliament where the scrutiny that takes place, which we are seeing now, allows MPs and Peers to interrogate the rationale, costs and benefits of any change.

Now we might assume that as we have worked with and lived with these rules for some time, no one would want to take away these established rights and protections, but there is the possibility that a deregulation-obsessed Government might want that to happen. We have already quoted Liam Fox thinking protections make it too difficult to fire staff, and that:

“Political objections must be overridden”,


to deregulate the labour market. We have heard Michael Gove say,

“we now have the potential to amend or even if necessary rescind”—

—yes, he said “to if necessary rescind”, splitting an infinitive—employment protections. The noble Lord, Lord Callanan, who is not in his place, in the name of “speeding up growth”, thought to,

“scrap the working time directive, the agency workers’ directive, the pregnant workers’ directive”.

Indeed, the Initiative for Free Trade, founded by that Minister’s friend, Daniel Hannan MEP, favours tearing up the EU’s precautionary principle under which traders have to prove something is safe before it is sold—a key consumer protection.

Meanwhile, the Foreign Secretary, from whom the noble Lord, Lord Callanan, sensibly distanced himself yesterday, described workers’ rights from the EU as “back-breaking”, a particularly inept description since most of these protections are for the health of workers, including of their backs.

Another point that Boris Johnson noted, quite rightly, is that we are a nation of inventors, designers, scientists, architects, lawyers and insurers, but it is exactly those architects, scientists, designers and insurers, as well as the CBI and the British Chambers of Commerce, who have been filling up my email, urging us to remain in a customs union with its relevant regulation. The very businesses which already operate such rules seem very content to keep them, but the rules are at risk as they could be amended by secondary legislation. Similarly, the TUPE regulations, which protect the jobs, pay and conditions of workers who have been affected by outsourcing, could be at risk. The TUC has highlighted that TUPE rights tend to protect workers such as cleaners, one in six of whom is BME. Without those protections they could be dismissed or be placed on zero-hours contracts rather than in permanent, secure jobs. The TUC heard rumours that Ministers want to scrap the working time directive and fears it could be just the start and that other protections could similarly go.

As we might expect, it is not just the TUC and unions representing workers which have these concerns. There is widespread public support for EU-derived consumer, employment and environmental regulations and minimal appetite for deregulation. Three-quarters of the public support retaining or strengthening the working time directive and nearly three-quarters want to keep vehicle emissions rules. Indeed, an Opinium survey for the IPPR found,

“little to no appetite among the public for reducing or removing EU standards”.

Interestingly, that feeling was shared by leave voters and remainers, with only 5% of either remainers or leavers supporting any loosening of consumer cancellation rights, for example. Furthermore, the survey found strong support for higher standards in certain areas, particularly environmental and financial regulation. So the unions are not clamouring for deregulation and nor are the public or the public sector. I am sure other noble Lords’ emails show that the rights that we are bringing over in this Bill should not be weakened.

The British Medical Association, along with 12 royal colleges and unions, wrote to the Prime Minister in December calling on her to stand firm against any Brexiteers who want to scrap European laws, warning of risks to patient safety and arguing that even with current EU regulations,

“fatigue caused by excessive overwork remains an occupational hazard for many staff across the NHS”.

The Royal College of Nursing warns that,

“removing or weakening working time regulations would put patients at serious risk.”

Such protections are clearly supported by those who know them and work with them, but they are not just good in themselves: they matter for trade. Indeed, non-tariff barriers are a bigger hurdle to trade than are, for example, customs duties. So even if the Government are not worried about patient safety or workers’ rights—and I am sure they are—they should listen to industry, on whose success our economy depends. The CBI has stressed:

“Frictionless trade with the EU is businesses’ number 1 priority”,


and:

“A hard-headed look at the economic evidence ... shows that some form of a customs union is necessary to ensure frictionless-trade and no hardening of the Irish border”.


The British Chambers of Commerce stresses the importance of businesses getting,

“their goods across borders as quickly as possible”,

and getting things across borders means not checking for different regulations. The regulations we are bringing over under this Bill will be the ones that operate in the rest of the EU, and so long as we continue with them, our trade with the EU will be easy to maintain.

The chief executive of ADS, which represents companies in aerospace, defence and security, stresses the same issue and says that the freedom to move with the same regulations is the solution that those businesses want after Brexit. Noble Lords will know that the farming industry and the NFU strongly stress that the only way for frictionless trade in the food sector is with the same regulations—the regulations that we are bringing over by the Bill.

We are content that bringing over those regulations is the aim of the Bill. They are about safety, workers’ rights and the environment but they are also about our future trade and competitiveness. This amendment seeks to ensure that having brought the regulations over it will not be possible for a Government to start playing with them by statutory instruments to weaken them after we have passed this Bill to bring them over. The Prime Minister said, I think in her response to the BMA and other bodies, that,

“it will be for Parliament and, where appropriate, the devolved legislatures to decide on future law”.

That is the commitment we are trying to put into the Bill: that it would be an Act of Parliament, not secondary legislation, that would amend what we are now putting into UK statute. We are seeking to protect standards, not privileges. I hope that the Minister will accept this amendment, at least in principle, if not the wording. I beg to move.

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[Lord Keen of Elie]

My Lords, we must make progress at this stage, if the noble Lord does not mind. We have to keep moving.

I come to the nub of the point. If there is a concern about the powers being conferred on Ministers to ensure that the retained EU law works after exit, that arises in the context of Clauses 7 and 5, which will be the subject of future debate in this House. As I say, it is not appropriate to try to represent the powers already set out in the Bill as extending beyond the boundaries set out precisely there about correction, regulation and making retained EU law work. I respectfully suggest that the route proposed by the noble Baroness is not one that we should go down as we would simply run into the sand. If we were to list technicalities and technical changes in all these areas of legislation, we would be here in 10 years’ time trying to produce such a schedule; let us be frank about it. Of course, many people may wish that we will be here in 10 years’ time attempting to achieve that. In that context, I invite the noble Baroness to consider withdrawing her amendment and invite the noble Lord, Lord Judd, not to move his.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I perhaps ought to clarify that I was responding to a question from the noble Lord, Lord Pannick. I meant the Government in the course of the Bill rather than the Government simply deciding that they wanted to do it.

[Baroness Hayter of Kentish Town]

I thank the noble Lord. I apologise for misunderstanding that point.

I am afraid there was an offline conversation between the noble Lord, Lord Kirkhope, and myself. I do not know whether he referred to that when he spoke but in that conversation he gave a very good description of the aims of the Bill—namely, that after we have examined it and are satisfied that all the stuff is going into UK legislation, everyone should know what the rules are and the Bill should achieve that outcome. That is what this measure is about. It is about whether we leave it to Ministers in the future to decide which bits of retained EU law they can deal with in secondary legislation. As my noble friend Lady Drake said, we need to restrain executive powers as ministerial promises will not suffice. That in a sense is where we are with this issue.

My next point relates to the issue raised by the noble Earl, Lord Listowel—namely, that we as legislators look at something but may forget sometimes to undertake consultation, be it with families or anyone else. That is one of the other great advantages of primary legislation: it is much more out there for people to talk about.

The noble Lord, Lord Pannick, as always trumps everything I do and comes up with much better arguments. However, I too had not noticed the lack of a time limit in Schedule 8. I am sure that we shall want to return to that.

As we have heard a number of times, the Minister said that there has been no parliamentary scrutiny of the current EU law, so anything we get in future will be better. I remind him that much of that law goes through the Council of Ministers, where we have a Minister, and through the European Parliament, where we have British MEPs. Therefore, the idea that there is no democratic involvement from the Brits is not quite right. We are listening to the concerns of consumers, workers and, indeed, business, about the Bill and I think there will be amendments to it to address some of their concerns. However, we are looking now to future-proof it to ensure that we do not give Ministers rights that we may not want them to have. We will come back to that in the broader discussion. However, for the moment, all noble Lords will be very pleased to know that I beg leave to withdraw Amendment 21.

Amendment 22 (to Amendment 21) not moved.