Retained EU Law (Revocation and Reform) Bill

Brendan O'Hara Excerpts

2nd reading
Tuesday 25th October 2022 Commons Chamber

[Brendan O'Hara (Argyll and Bute) (SNP)]

It is a pleasure to follow the right hon. Member for North East Somerset (Mr Rees-Mogg). Little did I imagine when I arrived this morning that that would be the case, because it would mean that one of only two things could have happened: either the SNP had become the official Opposition, or he had been sacked, neither of which would give me great joy.

I rise to speak to the amendment tabled in my name and those of my right hon. and hon. Friends, in which we decline to give this ill-conceived, ill-timed, ill-judged and frankly dangerous piece of legislation a Second Reading. I had intended to start by saying that a week is a long time in politics and that events had overtaken the Bill since we first debated the matter in Westminster Hall with the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for Watford (Dean Russell). However, the chaos that continues to engulf this place suggests that an hour is a long time, and so much can change.

Already, as we have heard, the former Secretary of State for Business, Energy and Industrial Strategy, the right hon. Member for North East Somerset, has resigned, just hours before he was due to lead on one of the most important and wide-ranging constitutional Bills to have come before this House in a long time, leaving the Government frantically searching for a replacement. The Government, having allowed him to take this Bill with him when he was reshuffled out of the Cabinet Office, now find themselves in the farcical, ridiculous position of having to find a replacement for the Secretary of State, with a Bill stuck in completely the wrong Department.

As my hon. Friend the Member for Glasgow North (Patrick Grady) said, this was always a pet project of the right hon. Member for North East Somerset, something that previous Prime Ministers were prepared to indulge him on. However, today’s resignation means that yesterday’s man is no longer available to introduce yesterday’s Bill on behalf of yesterday’s Prime Minister—yet the Government plough on regardless of this almighty constitutional mess.

Right now, this poisoned chalice has been passed to the hon. Member for Watford to pick up at short notice. I am sure he will be aware of the credible rumours circulating this place that the new Prime Minister is planning to break up the entire Department, leaving this Bill like an unwanted Christmas puppy, which no one really wanted in the first place, no one really cares for and no one is quite sure what to do with now that the person who pressed for it has flounced out of the front door.

The whole sorry episode speaks to the dysfunctionality and complete disarray at the heart of this Government. As I said in my letter to the now former Secretary of State on Friday, I believe that this House and the nations of the UK would have been much better served had the Government withdrawn this Bill, following the resignation of what I think was the last Prime Minister last week. Certainly, given what has happened today, they should have withdrawn it from the Order Paper.

I welcome the hon. Member for Watford to his place, but he will be aware that in the current circumstances, while he may last longer than the average lettuce, the smart money suggests that he may not have too long a shelf life in this role. He, like you, Madam Deputy Speaker, must be pining for the good old days of the ministerial carousel when we could expect a Minister to go around at least once before falling off. We now have a political bucking bronco, from which Ministers are propelled out of the hotseat almost immediately they get in the saddle. The right hon. Member for North East Somerset can testify to what happens in this particular rodeo if one picks the wrong horse, or indeed the wrong donkey.

This Bill is the first test of the new Prime Minister, who has a decision to make. Will he decide it is business as usual and that he will plough on with this scorched earth, far-right, ERG-inspired mess, confirming once and for all that the Conservative party is happy to be the handmaiden of an ideologically driven, UKIP-style deregulatory race to the bottom? Or will he signal a reset in Government policy, one that includes resetting the relationship between Westminster and our Government in Edinburgh? His two predecessors deliberately let that relationship deteriorate to such an extent that, in her 45 days, the previous Prime Minister did not even bring herself to pick up the phone to our First Minister.

This Bill gives UK Ministers unprecedented power to rewrite and replace almost 2,500 pieces of domestic law covering matters including environment and nature, consumer protection, water rights, product safety and agriculture, and to do so with the bare minimum of parliamentary scrutiny. Taken in conjunction with the United Kingdom Internal Market Act 2020, this Bill threatens to undermine and alter the devolution settlement by giving primacy to the law of the United Kingdom in areas that are wholly devolved, such as environmental health, food standards and animal welfare. This means that legislation passed by the Scottish Parliament to keep us in lockstep with EU regulations could be overruled by a Government here in Westminster that we have never elected.

[Sammy Wilson]

Does the hon. Gentleman understand the inconsistency of his argument? He objects to Ministers in the country to which he belongs being able to make changes to the law through this Parliament, yet he and his party would be quite happy to hand over all these lawmaking powers to Brussels, where he would have no say.

[Brendan O’Hara]

The right hon. Gentleman will be aware that Scotland, exactly the same as Northern Ireland, voted to remain in the European Union. What the Scottish people decide to do with our sovereignty is entirely our own decision. If we decide to pool and share that sovereignty with our European neighbours and friends, that is what we will do. He is asking me to accede to this Government, a Government we have never elected, riding roughshod over Scottish domestic policy in areas that are wholly devolved.

[Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)]

My hon. Friend is making a terrific point. Is it not a fact that, if we were a member of the European Union, the European Union would not seek to take away our powers without consent? What is happening here, at every stage, is an attempt to take powers away from the Scottish Parliament without consent.

[Brendan O’Hara]

My hon. Friend is absolutely right. This is about consent, because the Scottish Parliament has never agreed to this. I am sure I speak for future Scottish Parliaments, while the SNP are in government, when I say that we will never consent to having our rights taken away by a Government we did not elect.

[David Linden (Glasgow East) (SNP)]

In answer to the point made by the right hon. Member for East Antrim (Sammy Wilson), the difference in how the European Union treats its members is that, in our current Union, Scotland has 59 out of 650 MPs, so we do not have a proportionate say. The European Union’s members are equal, so a country with the population of Malta has the same say as Germany.

[Brendan O’Hara]

Again, I thank my hon. Friend for that intervention, and I could not agree more with what he says. He is right to say that the way Scotland has been treated by this Government is disgraceful and it cannot continue, and this power grab will be called out for what it is.

Let me ask the Minister this: what would happen if the Scottish Parliament decides that we will remain aligned to the European Union and we ban the sale of chlorinated chicken, but this place decides that cheap, imported, chlorine-washed chicken is acceptable? Exactly what power will the Scottish Parliament have to stop lorryloads of chlorine-washed poultry crossing the border and appearing on our supermarket shelves? Similarly, what happens if the UK agrees a trade deal that sees the UK flooded with cheap, factory-farmed, hormone-injected meat but our Scottish Parliament decides to protect Scottish consumers and Scottish farmers by adhering to existing standards and protections? Can he guarantee that the Scottish Government will be able to prevent that inferior quality, hormone-injected meat from reaching Scotland’s supermarkets? What happens if the Scottish Parliament decides that it will stick by long-established best practice in the welfare and treatment of animals but Westminster chooses to deregulate? Can he give a cast-iron guarantee that the Scottish Parliament will be able to prevent animals whose provenance is unknown and whose welfare history is unaccounted for from entering the food chain?

Can the Minister guarantee that should this Government decide to “relax” the regulations on the labelling of food packaging but the Scottish Parliament decides to remain aligned to the EU’s rules, that this place, using the provisions in the United Kingdom Internal Market Act 2020, will not force labelling changes on Scotland and have Scottish consumers unwittingly subjected to chlorine-washed chicken, hormone-injected beef, genetically modified crops and animals of questionable provenance?

There is a genuine fear that this Bill and the power it confers on this place is a potential death sentence for the Scottish agricultural sector, which in my constituency requires a hefty subsidy to in order to manage the land, keep the lights on in our hills and glens, provide employment and stem the tide of rural depopulation, while producing high-quality, high-value beef, lamb, and dairy products. My Argyll and Bute farmers know that the lowering of food standards, the relaxation of rules on labelling and animal welfare, and the mass importation of inferior-quality products will be an unmitigated disaster for Scottish agriculture.

I know, as the Minister does, that Angus Robertson, the Scottish Cabinet Secretary for the Constitution, External Affairs and Culture, has already raised these serious concerns directly with the Government. The Minister knows that if the UK Government choose to act in policy areas that are wholly devolved, they will do so without the consent of Scottish Ministers or the Scottish Parliament, and that that will represent a significant undermining of the devolution settlement.

This Bill is the starting whistle on a deregulatory race to the bottom; one in which individual citizens will surely lose out to the spivs and the speculators and, no doubt, to the “politically connected”, who will be fast-tracked into making a quick buck at our expense. Because despite the Government’s assurances, which we heard earlier, that the UK will have the opportunity to be bolder and go further than the EU in securing consumer and environmental protections, there are clauses in this Bill that will prevent Ministers from imposing any new “regulatory burden” on anyone. To me, that suggests strongly that this is headed in one direction only: to deregulation. That deregulation will make it easier to circumvent our existing legal obligations on labelling food for allergens; to row back on safe limits on working hours; to change those hard-won rights on parental leave; or to avoid paying holiday pay.

The Government will be aware of the fury that will follow should they move to weaken the existing controls on polluting substances being released into the air or to lower existing standards for water and in any way dilute the protections and defences of our natural habitats and our wildlife. It seems that for some Conservative Members there is no price too high in their desperate, deluded pursuit of the mirage of Brexit. They are prepared to put at risk our natural environment, food quality, animal welfare standards, consumer protection, workers’ rights and even our natural environment in order to achieve it.

As I said earlier, this is not a road that Scotland has chosen to go down—rather, this is a road that Scotland has been dragged down. Our nation rejected this Tory Brexit fantasy, but our democratic wishes have been ignored at every turn. This is not Scotland’s doing, but because of the constitutional straitjacket in which we find ourselves, we are having this done to us by a Government we did not elect. Thankfully, Scotland has a way out and will, as soon as possible, rejoin the European Union as an independent nation. I sincerely wish the people of the rest of the United Kingdom well in finding their way back, too.

The Government should be under no illusion that SNP Members will oppose the Bill every step of the way. Not only are the Government coming for the rights and protections that we have all enjoyed for decades, but they are coming for our Parliament as well. I urge them, even at this late stage, to perform another of their trademark, almost legendary, U-turns and abandon this disastrous Bill. Not only does it undermine the devolution settlement, but it diminishes the role of MPs, with a plan to deal with everything via secondary legislation, conveniently avoiding scrutiny measures by Parliament. A former Secretary of State said that this was taking back control, but we have to ask who is taking backing control. It is not Parliament, as the Government have gleefully announced to the press that

“the amount of parliamentary time that is required has been dramatically reduced.”

Taking back control for this Government appears to mean finding a group of a hand-picked party loyalists and putting them on a Delegated Legislation Committee, which has a built-in Government majority, so that they can bulldoze through change after change after change, as required. In the history of DL Committees, in the past 65 years, only 17 statutory instruments have been voted down—and that has not happened since 1979. While there is a role for such Committees, it is not to make wholesale and fundamental changes to vast swathes of the law, covering everything from the environment and nature to consumer protection.

As we have heard, parliamentary scrutiny is being avoided because, in their desperation or fervour to rid themselves of any European influence, the zealots at the heart of this collapsing Government have arbitrarily included a sunset clause, meaning that 2,500 laws will be removed and not be replaced. Unless the Government grant themselves an extension, those laws will simply disappear from the statute book.

[Jonathan Edwards]

Is the hon. Gentleman aware of the Institute for Government’s view that the time between now and the date of the sunset clause is completely insufficient, so Parliaments and the Government will be consumed with trying to replicate those laws by 2023?

[Brendan O’Hara]

That is a very good point, and it is something that the Scottish Parliament and the Scottish Government are extremely concerned about, because doing something that is utterly unnecessary will take up a great deal of their time.

The tactic is fraught with danger, as it introduces another totally unnecessary Brexit cliff edge, which will be welcomed by no one outside the inner sanctum of the European Research Group. It is further evidence of panic at the heart of the Brexit project. They know the wheels have come off and their Government are disintegrating before their eyes.

Finally, I repeat: this Bill should be withdrawn. It is a throwback to different times, and if the new Prime Minister is serious about making a fresh start and resetting relationships with Edinburgh, Brussels and the people of these islands, then abandoning this ill-judged piece of UKIP-ery would show that he is serious.

[Several hon. Members rose—]

Retained EU Law (Revocation and Reform) Bill (Third sitting)

Brendan O'Hara Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[The Chair]

We are now sitting in public and the proceedings are being broadcast. I have a few preliminary announcements. Hansard colleagues would be grateful if Members could email their speaking notes to [e-mail]. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.

We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments do not take place in the order they are debated but in the order they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates.

A Member who has put their name to the lead amendment in a group is called first. Other Members are then free to catch my eye to speak on all or any amendments within the group. A Member may speak more than once in a single debate. At the end of a debate on a group of amendments, I shall call the Member who moved the lead amendment again. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know.

Clause 1

Sunset of EU-derived subordinate legislation and retained direct EU legislation

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 26, in clause 1, page 1, line 4, leave out “2023” and insert “2026”.

This amendment, together with Amendment 28, changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation would take effect to the end of 2026.

[The Chair]

With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 8, leave out “2023” and insert “2026”.

This amendment, together with Amendment 26, changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation would take effect to the end of 2026.

[Brendan O’Hara]

It is a pleasure to see you in the Chair, Sir George. Amendments 26 and 28, tabled in my name and that of my hon. Friend the Member for Glenrothes, would change the date on which revocation would take effect from the end of 2023 to the end of 2026, essentially moving the date of the sunset clause by three years, from the totally unrealistic and unachievable to something that is still extremely challenging but is at least on the margins of the possible.

Before I address the amendments directly, it is worth pointing out that they have been tabled, like all the others, to try to make a thoroughly rotten Bill a little bit better, and should not be viewed in any way as we on the Opposition Benches giving any succour or support to the Bill. As we have said throughout its passage, the Bill is a dreadful piece of legislation that we will oppose at every step of the way, but if we can help to make it less awful, we will.

I have to begin by asking the Government why they are pushing ahead with the Bill. The architects are gone; it really belongs to another age, when the true believers were in charge, pushing the myth of the sunlit uplands of Brexit. We said it was rubbish then, and as we survey the wreckage of the UK economy post Brexit, it is demonstrable rubbish now. Why are the Government pushing ahead? We are in the middle of an economic crisis. People cannot heat their homes. Children are growing up in poverty. Food banks are being used by millions. Yet the Government are introducing arbitrary targets, which even if they could be achieved would consume just about every Government Department for the next 12 months, not just here but in Edinburgh, Cardiff and Belfast too. As the former senior civil servant in the Department for Environment, Food and Rural Affairs Jill Rutter told BBC Radio 4:

“If you look at my old department, they have about 500 pieces of law they need to look at…even if they worked every day to the end of 2023, they’d be reviewing whether they keep or allow to lapse a piece of law a day”.

At the moment, an eye-watering 3,800 pieces of EU legislation face the sunset clause on 31 December next year. On Second Reading a few weeks ago, that figure was considerably lower. In the intervening few weeks, no fewer than 1,400 other pieces of legislation have been discovered, and goodness knows how many more are yet to be identified. If the Bill passes unamended, all those will be added to the almost 4,000 existing pieces of legislation that will be sunsetted in 13 months’ time. Why on earth did the Government set such an arbitrary deadline for themselves? Why would they introduce a totally unnecessary cliff edge on such a vital piece of legislation about workers’ rights, environmental protections, food standards and so much more? It makes no sense whatsoever.

[Peter Grant (Glenrothes) (SNP)]

Like my hon. Friend, I have been puzzling over why the Government are so determined to die in a ditch over this 2023 date. Does he think it is because instead of admitting to the public that they made promises in 2019 they could not possibly keep— having realised that the promise in 2019 to get Brexit done was completely unrealistic—they are prepared to crash the economy in order to go into a 2024 election saying they have got Brexit done?

[Brendan O’Hara]

I look forward to hearing what the Government have to say by way of explanation. I agree with my hon. Friend. It makes absolutely no sense, unless the arbitrary deadline is purely ideologically driven and there to appease the true believers, who have now resumed languishing on the Back Benches.

In response to the sunset clause of the Bill, the Scottish warned that it

“carries an unacceptable risk that vital law, on which the smooth functioning of sectors of the economy and society depends, simply drops off the UK statute book.”

If the Government will not listen to us, perhaps they will take heed of the warning from the right hon. Member for Camborne and Redruth (George Eustice), who said that the Australia and New Zealand trade deals were so poor because of the Government’s self-imposed arbitrary targets. Of course, Members on the Government Benches will say that there are extensions available if they are applied for, but that ignores the fact that the relevant Departments still have to go through and identify at least 3,800 pieces of pertinent legislation, and then someone has to decide what happens next.

Even then, it is far from clear. Does the Secretary of State get to decide that an extension is allowed? Will a decision be made by the Cabinet or at a Cabinet Sub-Committee? Will a separate body be set up to specifically to examine which legislation can and cannot be granted an extension? Let us not forget that if this is not all done and dusted in 13 months, every piece of EU retained legislation will by default fall off the statute book, leaving huge holes in our domestic legislation.

[Mr David Jones (Clwyd West) (Con)]

Could the hon. Gentleman indicate whether he and his party are entirely happy with every aspect of EU retained law? If not, which aspects does he feel should be swept away?

[Brendan O’Hara]

The right hon. Gentleman misses the point. It is about a much wider area: the principle of sunsetting by the end of next year. It is a legal minefield. If we are determined to travel through it, let nobody come back in a year’s time and say, “We didn’t know”, because it is perfectly obvious. The case has been made perfectly clear; sunsetting by December 2023 is well-nigh impossible and will lead to huge dangers. It is a disaster waiting to happen. Today the Government have the chance to finally accept that the price of appeasing their true believers is a price too high. I urge them to accept our amendment.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Sir George. I will start by echoing the comments of the SNP spokesperson, the hon. Member for Argyll and Bute. We do not think the Bill is fit for purpose. We will try to help the Government to improve the Bill with the amendments we will be moving, but fundamentally we think its approach is flawed, not least the subject of this amendment—the unnecessary and entirely artificial cliff edge, which is driven by political considerations, not practical ones.

I have yet to hear any justification for the deadline of 31 December 2023, other than the belief—seemingly rooted in fantasy—that unless we free ourselves of the shackles of these regulations by that date, we can never prosper as a country. That is a fantasy, because whenever a Department is asked to identify which regulations it no longer wants, all we hear is silence. We are told that we must hurry along and free ourselves of the 2,400 or 3,800 regulations—or however many they turn out to be—that are holding us back. The best I have heard any Government Minister say so far is something about vacuum cleaner power, but given the chaos of the past few months I am not sure anyone can seriously say that the reason for our current economic mess is that we do not have sufficient control over our hoovers.

I do understand the need to have a finite date. I understand the importance of having a target to work towards, but the date has been plucked out of thin air, seemingly at random, and we should not accept it unless a compelling and rational case is put forward. The Regulatory Policy Committee has said that setting a deadline is not enough, and that a stronger argument is needed for choosing that particular date, and I agree. The truth is that there is no better reason for that date having been chosen than the Prime Minister of the day, or the week, being able to say, “We will have put an end to all unnecessary EU burdens by the end of next year”—never mind that the Government cannot tell us what those burdens are, or why the end of 2023 is better than the end of 2024, 2025 or 2026. What we can say for certain, though, is that there will not be sufficient capacity in the civil service for a genuinely effective appraisal of the regulations that the Bill seeks to remove. The case for the cliff edge is incredibly weak; the arguments for removing it and putting the date back are much stronger.

Let us look at the numbers for a moment—although, of course, the numbers are something of a moveable feast. If we accept the newspaper reports that 3,800 statutory instruments will come within the ambit of the Bill, and presume—because we have not heard anything to the contrary—that the Government want to keep the majority of them, more statutory instruments would need something doing to them as a result of the Bill than were passed in the whole of last year. Of course, we had many extra regulations in that year due to covid, and plenty of people think the scrutiny of those particular instruments was not at the required level, so even under the most generous interpretation, we are looking at possibly doubling from last year the number of statutory instruments, if everything is to be passed before the end of next year.

It will be in half the time, as well. Let us assume for now that the Government press on with the Bill—although there is still some doubt about that, I believe—and it gets to the Lords early next year. There will probably be a bit of to and fro, given the significant constitutional elements this legislation contains, so it will not get Royal Assent until well into the spring. At best, that gives the Government six, seven or eight months to restate all the laws that will be covered by the Bill, so will the Minister tell us how many extra staff each Department has been assigned to deal with the additional workload? Have they been given any deadlines to work to? As we know, the Financial Times reported on 27 October that the Minister’s Department, with 300 pieces of EU law, would need an extra 400 staff to review the body of retained EU law. What does that mean if we extrapolate it across the whole of Government? How many extra staff will be needed overall in anticipation of the Bill?

The Financial Times also reported that “Whitehall insiders”—I never quite know who those people are, but they obviously have sufficient insight to talk to the press—are saying that

“reviewing the majority of retained EU law by 2023 would present a massive bureaucratic burden. One senior Whitehall official estimated that between 1,000 and 1,500 statutory instruments would be required in order to convert retained EU law that was deemed necessary on to the UK statute book.”

No wonder the impact assessments are silent on the issue of the sunset date. The Regulatory Policy Committee has made clear that it believes the analysis of that sunset date is inadequate. I refer to a newspaper report in the Financial Times, which said that Government officials are considering whether to press ahead with the 2023 sunset clause. I do not know if that is news to the Minister, but it is hot off the press. According to the article, Government officials have said that the Prime Minister and the Business Secretary have “yet to decide whether to stick to the 2023 deadline or push it back.”

No. 10 said,

“It’s too early to say.”

I am afraid it is not too early to say because we are debating it right now. If the Government have plans to push back the sunset, it will be useful to hear. If the Minister is able to comment on that report when she responds, I would be obliged.

I remind the Committee what Mark Fenhalls of the Bar Council said in the evidence session:

“I am no expert in how much civil service time exists, but I would be astonished if it were remotely possible to cover but a fraction of this. I do not know why it is set up as anything other than a political problem.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 28, Q56.]

That is the nub of the issue. This is a politically generated deadline that is going to cause problems, but if the Committee needs further persuasion, I also refer to the written evidence of the Bar Council, which raised the alarm when it said:

“The setting of an arbitrary, and in all the circumstances, impractical sunset date, with the consequent and entirely unnecessary risk of the disappearance of rules of critical importance to business, consumers, employees and the environment (some of which, due to their sheer numbers, may only be missed once lost) without adequate consideration or any consultation, and conferring an entirely unfettered and unscrutinised discretion to Ministers to disapply or delay the sunset provision or not; as well as the attendant risk of rushed replacement legislation”.

Eleonor Duhs also told us in the evidence session:

“In order to get the statute book ready for Brexit, which was in some ways a much more simple task than this, it took over two years and over 600 pieces of legislation. The reason I say it was a simpler task is that we were essentially making the statute book work without the co-operation framework of the EU. We were taking out references to the European Commission and replacing them with ‘Secretary of State’—that sort of thing. That was a much simpler task than what we have here, and that took over two and a half years.

A lot of areas also have several pieces of amending legislation… There may be huge policy changes under this legislation, and the end of 2023 is simply not a realistic timeframe for the process.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 29, Q56.]

There is plenty of evidence of concern out there, indicating that we should look again at the sunset. If Members are reassured that there is departmental and civil service capacity to handle all that in the time required, perhaps they should also consider the scrutiny aspects of the sunset, and whether Parliament will be able to fulfil its role properly in the time available. As George Peretz said in the evidence session:

“the sunset clause does interrelate with the question of Minister’s powers. One of the problems with the effectiveness of parliamentary scrutiny is that although one hears that Parliament has powers—in some cases via the negative or affirmative resolution procedures—the background against which it is being asked to approve legislation means that if it votes against that legislation, the sunset clause will apply and regulations disappear completely, rather weakening Parliament’s ability to do anything.

To take an example, if Ministers decided to keep the working time rules but rewrite them to make them less favourable to employees, and came up with the new regulations in November 2023, those rewritten regulations would probably be introduced under the affirmative procedure. However, when the House of Commons voted on them, Ministers would say, ‘You may not like these revised regulations very much, but if you do not vote for them, the alternative is that we will not have any regulations at all.’ That weakens Parliament’s ability to control the exercise of ministerial power.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 32, Q61.]

I do not want to be back here in a year’s time faced with a choice between accepting a reduction in the number of days of paid holiday that people are entitled to from, say, 28 to 10, and the alternative—people having no right to paid holiday at all—because we have been forced up to a precipice due to the timescale set out in the Bill. That is not Parliament taking back control.

I am not alone in my concerns. The Delegated Powers and Regulatory Reform Committee raised concerns about primary legislation and said that

“where little of the policy is included on the face of the bill”

but where Parliament is asked

“to pass primary legislation which is so insubstantial that it leaves the real operation of legislation to be decided by ministers”,

this reduces any parliamentary scrutiny to a bare minimum, and we are left only with

“delegated legislation which Parliament cannot amend but only accept or reject, with rejection being a rare occurrence and fraught with difficulty.”

That Committee further warned that

“the abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy”.

It is a shame that the former Secretary of State, the right hon. Member for North East Somerset (Mr Rees-Mogg), did not take his own advice on that issue before he drafted the Bill. When he was Leader of the House, in response to the Committee’s report into the frequent use of skeleton Bills during the period of the pandemic, he said that it did not

“necessarily provide a model example of how Parliament would like to see legislation brought forward”,

and that he would be

“encouraging them to minimise the use of delegated powers where possible”.

However, here we are today.

Finally, I will respond to the argument that there is already provision in the Bill to address the sunset. The problem is that that can apply to laws only if we know about them in the first place. There is also the prospect that we end up with a potpourri of sunset dates, because it could be any time between now and 2026. That just creates more uncertainty and confusion, and uncertainty for businesses that are trying to invest.

In conclusion, we support the amendments because 2023 is a deadline in search of a headline. It is not a serious proposition and it should be rejected. Parliament legislated, as we were preparing to leave the EU, to avoid a cliff edge. It seems illogical and reckless in the extreme to be now deliberately creating one when we are so close to the precipice.

--- Later in debate ---

[Ms Ghani]

The dashboard is there to identify the pieces of legislation that need to be uncovered, but of course we will constantly look, constantly dig and constantly ask Departments to see what else is in place. I do not think it is unreasonable to ask Departments to explore what pieces of legislation are in place, which ones are valid, which ones have already come to the end of their lifespan and what more we need to do. I think it is really healthy to ask Departments, to ask across Whitehall, what further work needs to be done. That work will then continue, and on the anxiety over the sunset clause, we have the extension in place as well.

Combined, the amendments would thwart the Bill and retain REUL as a distinct category of law on the UK statute book. I therefore ask that the amendments be withdrawn or not pressed.

[Brendan O’Hara]

I thank the hon. Member for Walthamstow and the hon. Member for Ellesmere Port and Neston—and happy birthday! I am sure that he dreamed of spending his big day with us. Both Opposition colleagues made extremely convincing arguments that this work simply cannot be done in the timescale that has been laid out in the Bill. I think that nobody believes that it can be done in the timescale, because basic logic tells us that it cannot. Like the hon. Member for Sheffield Central, I have enormous sympathy for the Minister, who I think has been sent in, as he said, to defend the indefensible. I suspect that eventually, when the harsh reality dawns over Downing Street, which it appears to be doing, this will change, and I hope that it will change sooner rather than later. On that basis, I will not push our amendments to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara]

I beg to move amendment 68, in clause 1, page 1, line 6, at end insert—

“(1A) Subsection (1) does not apply to an instrument, or a provision of an instrument, that—

(a) would be within the legislative competence of the Scottish Parliament if it were contained in an Act of the Scottish Parliament, or

(b) could be made in subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”

This amendment restricts the automatic revocation or “sunsetting” of EU-derived subordinate legislation and retained direct EU legislation under Clause 1 of the Bill so that it does not apply to legislation that is within the legislative competence of the Scottish Parliament.

[The Chair]

With this it will be convenient to discuss amendment 21, in clause 23, page 22, line 23, leave out “Scotland”.

[Brendan O’Hara]

I rise to speak to the amendments tabled in my name and that of my hon. Friend the Member for Glenrothes, which would remove the sunsetting of EU legislation where it falls within the competence of the Scottish Parliament.

The amendments would mean that if, defying all logic, the Government are still determined to push ahead with the dangerous sunsetting of all EU legislation by 31 December next year, the Scottish Parliament could, in respect of areas that are wholly devolved, decide to keep relevant domestic legislation aligned to that of the European Union. That would mean that, in areas such as environmental health, food standards and animal welfare, the people of Scotland could continue to enjoy the high standards and protections that we have had as members of the European Union for almost five decades.

In his oral evidence to the Committee, Angus Robertson MSP suggested that it would be perfectly possible to draft the Bill

“in such a way that it did not apply to Scotland or Wales”

by limiting

“the scope of the Bill to non-devolved areas.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 80, Q136.]

Why should it not be drafted in such a way? Let us never lose sight of the fact that this is not our Brexit. This is something that is being done to us by a Government we did not elect pursuing the hardest form of a policy that we overwhelmingly rejected. In the circumstances, it is perfectly reasonable to suggest that legislation that is the preserve of the Scottish Parliament be excluded from this one-size-fits-all approach.

Angus Robertson also told the Committee that the UK Government were still, even at this late stage, unable to tell Scottish Government Ministers exactly which areas of competence they consider devolved and which they intend to view as being reserved to this place. In his evidence, Charles Whitmore from the school of law and politics at Cardiff University warned our Committee that the Bill could lead to

“legal uncertainty, and that is compounded at the devolved level because our capacity constraints are probably more acute, so the time sensitivity is even greater”.––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 85, Q141.]

As I said earlier, it might be the skewed priority of this Government to instruct Departments across Whitehall to prioritise this ill-conceived bonfire of retained EU law ahead of trying to mend the broken economy or lift people out of poverty, but that is certainly not the priority of the Scottish Government nor, I suspect, of the Welsh Government. Yet, as it stands, they will be forced to set aside valuable Government and parliamentary time to take part in this exercise, which will undermine the high standards and protections that people in Scotland have enjoyed and have quite rightly come to expect from European Union membership. Given that, I intend to press amendments 68 and 21 to a vote to ensure that the sunsetting of retained EU law does not apply in areas that are devolved.

[Justin Madders]

We have some sympathy with amendment 68. From what we can determine, it tries to equalise the approach to the current anomaly whereby under clause 1(2) the power to remove the sunset is granted both to Westminster and to devolved authorities, but the power to extend the sunset under clause 2(1) is just for Ministers in Westminster. I do not know the reasons for the difference in that approach.

I suggest that the evidence sessions did not reveal a particular state of readiness in the Scottish Parliament for the administrative burden that the Bill will leave it with. That is not, by the way, a criticism of the Scottish Parliament; it is a reflection of the timescales that we face. The current powers in the Bill leave the Scottish Parliament in a position in which it would have to remove the sunset entirely, whereas perhaps an option could be for it to extend the sunset for reasons of capacity. That would be a much more measured approach.

--- Later in debate ---

[Ms Ghani]

I will continue.

A question was raised earlier, as the hon. Member raised just now, about a power grab. When using the powers under the Bill, the Government will use the appropriate mechanisms, such as the common frameworks, to engage with the devolved Governments. That will ensure that we are able to take account of the wider context and allow for joined-up decision making across the UK. If any disputes arise, we are committed to using the appropriate processes set out in the review of intergovernmental relations.

Nothing in the sunset provision affects the devolution settlement. It is not intended to restrict the competence of either the devolved legislatures or the devolved Governments; rather, it will enable the Scottish Government to make active decisions about the retained EU law within their devolved competence for the benefit of citizens and businesses throughout Scotland. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.

[Brendan O’Hara]

It will come as no surprise to the Minister that I will not withdraw the amendment. I repeat that Scotland is having this done to us by a Government that we did not elect, pursuing a policy that we overwhelmingly rejected. My hon. Friend the Member for Glenrothes is right that the priorities of the Scottish Government will be dictated by the Government in Westminster. That flies in the face of the devolution settlement. I agree with the hon. Member for Ellesmere Port and Neston that, if a matter is within the devolved competence, it should be for the devolved Parliaments to decide whether they retain EU law and whether they sunset it. On that basis, I will press the amendment to a Division.

Question put, That the amendment be made.

--- Later in debate ---

Division 2

Ayes: 7

Noes: 9

[Brendan O’Hara]

I beg to move amendment 22, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply unless a motion approving the revocation of any piece of legislation to be revoked has been passed by the House of Commons, the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 23, in clause 15, page 17, line 4, at beginning insert “Subject to subsection (1A),”.

Amendment 24, in clause 15, page 17, line 5, at end insert—

“(1A) A Minister of the Crown may not make regulations under subsection (1) unless a motion approving the revocation of the secondary retained EU law has been passed by the House of Commons, the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly.

(1B) A motion under subsection (1A) must state the date on which the secondary retained EU law is to be repealed, and any regulations under subsection (1) which follow such a motion must provide for the revocation to take place on that date.”

[Brendan O’Hara]

The amendments are in my name and the name of my hon. Friend the Member for Glenrothes. I will be extremely brief. The purpose of these amendments is to recognise the fact that there are four Parliaments on these islands, and those Parliaments should be respected, so it should be the case that nothing can sunset, whether reserved or devolved, unless that is agreed to by the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly. We need to remind Committee members that Scotland and Northern Ireland completely rejected Brexit; only England and Wales supported it.

Had David Cameron been wise enough to accept a similar proposal to the one set out in the amendments—that is, had he said that the UK would not leave the European Union unless every constituent part of the UK agreed to that—we would not be in the boorach that we find ourselves in. I ask the Government to learn from their mistakes, and to accept that listening to and respecting the opinions of the Parliaments in the constituent parts of the United Kingdom might be a useful way to avoid yet another almighty mess. What is decided in this place will have a profound effect on the peoples across these islands. Heeding the views of their Parliaments, which represent the people of Scotland, Wales and Northern Ireland, would do nothing other than improve our democracy. For that reason, I urge the Government to accept amendments 22, 23 and 24.

--- Later in debate ---

[Ms Ghani]

I ask hon. Members to reject amendments 22 to 24. Amendment 22 would fundamentally undermine the principles of the Bill by requiring individual pieces of retained EU law to be approved by a motion in the House of Commons and all the devolved legislatures before the sunset could revoke them. Notwithstanding the issue with parliamentary time, this amendment would require the UK Government to seek consent from all the devolved legislatures before revoking any secondary retained EU law, irrespective of its devolution status or territorial extent. It seems that it would in effect give the devolved legislatures a veto over retained EU law in other parts of the UK, and is therefore highly inappropriate.

Amendments 23 and 24 would hinder the efficient removal of regulations that have been identified as beign outdated, unduly burdensome and not suitable for UK citizens and businesses. The intention in this Bill is not for the Government to take on the function of the devolved authorities; nor is the Bill a power grab. I therefore ask that the amendments be withdrawn or not pressed.

[Brendan O'Hara]

I am not remotely surprised by the Minister’s reply, but I gently ask her: who knows better than the parliamentarians representing people across these islands in Edinburgh, Cardiff and Belfast about what is best for them and the people who elected them? They can also provide expertise on the damage that unintended consequences can cause. How often in this Parliament have we made the case that on occasion—or often—the views of other parts of the United Kingdom have been overlooked or ignored by the Government, and that Government officials have been unaware of them?

This is about democracy. This is about giving the other Parliaments the right to say, “No, this will not work, and these are the reasons why.” Very recent history tells us that had we adopted such an approach only six or seven years ago, we would not be in the mess we are in. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Justin Madders]

I beg to move amendment 73, in clause 1, page 1, line 9, at end insert—

“(2A) Subsection (1) does not apply to the following instruments—

(a) Management of Health and Safety at Work Regulations 1999,

(b) Children and Young Person Working Time Regulations 1933,

(c) Posted Workers (Enforcement of Employment Rights) Regulations 2020,

(d) Part Time Employees (Prevention of Less Favourable Treatment) Regulations 2000,

(e) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002,

(f) Transfer of Undertakings (Protection of Employment) Regulations 2006,

(g) Information and Consultation of Employees Regulations 2004,

(h) Road Transport (Working Time) Regulations 2005,

(i) Working Time Regulations 1998,

(j) Agency Workers Regulations 2010,

(k) Maternity and Parental Leave etc Regulations 1999,

(l) Trade Secrets (Enforcement etc) Regulations 2018,

(m) The Health and Safety (Consultation with Employees) Regulations 1996, and

(n) Information and Consultation of Employees Regulations 2004.”

This amendment would exclude certain regulations which provide for workers’ protections from the sunset in subsection (1).

Retained EU Law (Revocation and Reform) Bill (Fourth sitting)

Brendan O'Hara Excerpts

Committee stage
Tuesday 22nd November 2022 Public Bill Committees

[Stella Creasy]

My hon. Friend speaks with the experience and frustration of having seen this all before. That is the challenge. The hon. Member for Bosworth is relatively new to this experience, but many of us who have had to deal with this Government in its various incarnations over employment rights—and, indeed, over legislative processes—have seen the deterioration in their respect for and approach towards the parliamentary process, whereby Members could be confident about the Government’s direction of travel.

In this morning’s sitting I mentioned the words “cock-up” or “conspiracy”. A cock-up would be accidentally losing some of these pieces of legislation. That is why this amendment is so important: it sets out specifically all those pieces of legislation and provides a safety net. We could then have a sunrise approach to this legislation. If the Government wish to amend things, at least the legislation would be retained until it is amended. The conspiracy element comes from the previous experience of dealing with this Government, and the bemusement as to why Ministers and Back Benchers claim that we are scare-mongering, but refuse to give that commitment.

If the Minister will give a specific commitment today that every single one of those rights will be rewritten into UK legislation to give our constituents the same protection that they have now, I will happily support her, but she is not likely to do so. In that absence, it falls to all of us to make sure that our constituents—the vulnerable people we are concerned about—do not worry that their rights, precious as they are, are about to be abandoned. They have to hope that it is better to have a cock-up than a conspiracy, and that they might still be saved at some point, rather than that there is a deliberate attempt to reintroduce Beecroft by the back door—because that is what the Bill looks like, and that is what the amendment protects us against.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I will speak to amendments 60, 67 and new clause 4, tabled in my name and that of my hon. Friend the Member for Glenrothes. The amendments would oblige the Secretary of State to publish a full list of workers’ rights that could be put at risk under this legislation by 1 January 2023. It is a pleasure to follow the hon. Members for Ellesmere Port and Neston, and for Walthamstow. I fully agree with everything they said. If they press their amendment to a Division, our support is guaranteed.

We have heard several times today that the Bill gives UK Government Ministers unprecedented powers to rewrite and replace huge swathes of domestic law, covering matters such as environmental protection, consumer rights, and of course those long-established, hard-won workers’ rights. The right hon. Member for Clwyd West, and indeed the Government generally, have been at pains throughout the passage of the Bill to say that there will be no diminution of workers’ rights, but given that they have failed to produce an accessible list of exactly what will stay and what will go as a result of the Bill, coupled with the fact that so many stakeholders see the Bill as the starter pistol for a deregulatory race to the bottom, they will fully understand the scepticism that exists not just here, but outside this place, over any promise that workers’ rights will be protected.

Although we have heard the Government’s vague promises that everything will be okay, and the reassuring words, “Trust us, we’ll see you okay”, that is not good enough. Workers across the country will fear that the Government are going down a one-way road towards deregulation that will certainly not benefit workers or protect their rights.

We heard in the oral evidence session that the trade unions are particularly sceptical about what the Government have planned for workers’ rights. They have serious concerns that, among those 3,800—so far—discovered pieces of legislation that are due to be sunsetted in 13 months’ time, there could be legislation covering annual leave entitlement, women returning to the workplace, the treatment of part-time workers, protection from dismissal, holiday pay, legislation on working hours, and rights to parental leave. As the hon. Member for Ellesmere Port and Neston said earlier, the fact that this legislation was the brainchild of, and initially piloted by, the right hon. Member for North East Somerset (Mr Rees-Mogg) sets alarm bells ringing—with some justification, given that back in 2013 he was quoted as saying,

“It is hard to believe that the right to paid holiday is an absolute moral right; it is something that comes about because of political pressure at the time”—[Official Report, 1 March 2013; Vol. 559, c. 605.]

If that is not evidence enough of the direction of travel—or, at least, the suggested direction of travel—in which this Government are heading, I do not know what is. The Government have to accept that they have a long way to go in addressing the concerns of the trade unions, who explained much of their fear was based on being unable to find out exactly which pieces of legislation will stay and which will go. Shantha David of Unison said that the dashboard is

“the most incomprehensible piece of equipment. You have to put in random words to try and identify whether certain pieces of legislation will remain or go.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 58, Q91.]

It is a completely unsatisfactory position. All that new clause 4 would do is oblige the Government to provide trade unions, individuals and other organisations with a comprehensive list of every piece of employment legislation that could be impacted by the Bill. I do not think for a minute that that is too much to ask, or indeed too much to expect, the Government to provide. If the Government are serious and they want us to believe that the Bill will not put workers’ rights under threat, that is a very small and simple step to at least signal they are moving in the right direction.

[The Minister for Industry and Investment Security (Ms Nusrat Ghani)]

You will not be surprised to hear, Sir George, that I wish to reject amendments 73, 76, 67 and 60, and new clause 4. While the speeches were taking place, I was reflecting on the level of scrutiny we had when we were governed and subjugated by rules coming out of Europe. I do not recall transcripts from those meetings, or opportunities for Members elected to represent constituents and their businesses to get involved and offer up what they thought was needed for those businesses domestically. However, here we have an opportunity to assimilate, review and potentially improve rules and regulations, and to ensure that we are governed by rules that we enact here in the United Kingdom.

--- Later in debate ---

[Justin Madders]

I thank my hon. Friend for her intervention. I think there was a question in there somewhere. I agree with the general point that the fight for equality does not stop. It is always ongoing, and we have to look forward and ask ourselves what kind of country we want to be now that we have left the European Union. Do we want stronger workplace rights? Do we want equality in the workplace? Do we want to end discrimination? If we agree with those things, and certainly the Opposition do, the way to guarantee that we at least maintain the status quo is to vote for the amendment. My constituents will be considerably poorer over the next few years as a result of the economic decisions made by the Government. I do not want them to be poorer in rights as well, and that is why I will press the amendment to a vote.

[Brendan O’Hara]

Very briefly on new clause 4, it is extremely disappointing that the Government have dismissed what I believe was an easy opportunity to show that they were listening to genuine concerns that have been brought before the Committee. The information may be out there, but the fact that it is so difficult to find and has been described as incomprehensible by a qualified solicitor acting on behalf of trade unions should raise some concerns within Government. It really is not good enough to say, “It’s there. You just have to find it.”

All Governments have a duty to make things as transparent as possible. Now that the Government have been alerted to the fact that the information is incomprehensible, their casual dismissal of such fears as ridiculous does not bode well for those in the Opposition and outside the Committee who think we are on a one-way track to deregulation and the diminution of workers’ rights.

Question put, That the amendment be made.

--- Later in debate ---

[Justin Madders]

I will not detain the Committee long. We have ventilated a lot of the arguments about amendment 72 already in relation to why the 2023 deadline —or cliff edge—is unacceptable. The amendment would give the power that UK Government Ministers feel able to retain for themselves to extend the cliff edge to 2026 to the devolved authorities. There is no reason why we should have a different approach in the devolved authorities from that of the UK Government. Again, when we get into questions of devolved competency, it is clearly appropriate that those provisions should apply to devolved nations as well. We have already discussed these issues at length so I will not detain the Committee any longer.

[Brendan O’Hara]

I shall speak to amendment 31, tabled in my name and that of my hon. Friend the Member for Glenrothes. The amendment is crucial and goes to the heart of the whole debate. It seeks to clarify exactly which provisions the UK Government consider devolved and would therefore fall under the competence of Scottish Ministers, and which provisions would be reserved to the UK Secretary of State.

When this place passed the Scotland Act 1998, it listed areas of competence that were reserved. Everything that was not on that list was considered to be devolved. Yet in terms of the Bill, and with particular reference to the Government’s published dashboard, remarkably we still do not know exactly which areas the UK Government regard as reserved and which they consider to be wholly devolved.

Of course, it could be argued with some justification that the United Kingdom Internal Market Act 2020 knowingly created that confusion, and deliberately blurred the hitherto clear lines of demarcation between powers that had been devolved and powers that were reserved. Prior to the passing of the 2020 Act, it had long been accepted that environmental health, food standards and animal welfare were wholly devolved to the Scottish Parliament, but since its passing we have seen a significant encroachment by the UK Government and Ministers into policy areas that hitherto have been wholly devolved. That not only goes completely against the spirit of devolution, but directly contravenes the Sewel convention, which in 2016 was given statutory footing in the 1998 Act.

As a result, the Bill, in tandem with the 2020 Act, threatens to further undermine the devolution settlement by giving primacy to UK law in areas that have been wholly devolved, meaning that legislation passed in the Scottish Parliament to keep us in lockstep with European Union regulations could be overruled by the Government in Westminster, so I have a number of questions for the Minister. If the Scottish Parliament decides that we will remain aligned to the European Union and re-ban the sale of chlorinated chicken, but this place decides that cheap imported chlorine-washed chicken is acceptable, will the Scottish Parliament have the power to stop lorryloads of chlorinated chicken crossing the border and appearing on our supermarket shelves—yes or no?

Similarly, should the UK agree a trade deal that allows the importation of hormone-injected meat, but the Scottish Parliament decides to protect Scottish consumers and farmers by adhering to the standards and protections that we have now, can the Minister guarantee that under the provisions of the Bill the Scottish Government will be able to prevent hormone-injected meat from reaching Scotland’s supermarkets—again, yes or no? If we decide to retain long-established best practice in the welfare and treatment of animals entering the food chain but Westminster chooses to deregulate, will she give a cast-iron guarantee that the Scottish Parliament will be able to stop animals whose provenance is unknown and whose welfare history is unaccounted for from entering the food chain—again, yes or no?

Under the terms of the devolution settlement, the answer to all those questions should be an unequivocal yes, but despite us and the Scottish Government asking several times, we have been unable to get those guarantees. That is why amendment 31 is vital. I would be enormously grateful if the Minister could give clear, precise and unambiguous answers to my questions.

[Ms Ghani]

I ask hon. Members to reject the amendments and new clauses. Amendments 72 and 31 seek to make the power to extend available to devolved authorities as well as Ministers of the Crown. That power, exercisable under clause 2, will allow Ministers of the Crown to extend the sunset for specified pieces and descriptions of in-scope REUL, both in reserved and devolved areas, up to 23 June 2026. We therefore do not consider it necessary for the power to be conferred on the devolved authorities.

Conferring the power on the devolved Governments would introduce additional legal complexity, as it may result in different pieces and descriptions of REUL expiring at different times in different jurisdictions in the UK, across both reserved and devolved policy areas. I am sure that hon. Members understand how that would create a lot of confusion. Ministers of the Crown will also have the ability to legislate to extend pieces or descriptions of retained EU legislation in areas of devolved competence on behalf of devolved Ministers. That is to minimise legal complexity across the jurisdictions, as previously described.

Turning to the new clauses, the Bill already includes an extension power in clause 2. There is no need for an additional extension power solely for Scottish Ministers. Moreover, new clause 6 would change the sunset extension date from 23 June 2026 to 23 June 2029, in effect allowing REUL and revoked direct EU legislation otherwise subject to the sunset date to remain on our statute book in some form until the end of the decade. We have every intention of completing this ambitious programme of REUL reform by 31 December 2023. However, we are aware that complex reforms sometimes take longer than expected, and we will need to consult on new regulatory frameworks that will work best for the UK.

[Brendan O’Hara]

Could the Minister clarify the answer she has given? I think she said that because of the confusion that could arise from different regulatory frameworks operating in different Parliaments and different jurisdictions, UK law will take primacy, and there would be nothing that the Scottish Government could do to prevent us from having chlorinated chicken, hormone-injected beef or animals of questionable provenance. I am not clear on that; I am looking for a simple yes or no.

[Ms Ghani]

Well, it was not a simple question, and it was full of contradictions. During debates on previous amendments, we have spoken to the high levels of animal welfare that we have here in the UK, and the level of scrutiny that will take place.

To the point that the hon. Gentleman raised, conferring the extension power on the devolved Governments would introduce additional legal complexity. Specifically, it might result in different pieces and descriptions of retained EU law expiring at multiple different times in different Administrations across the UK. Those pieces of retained EU law may cover a mix of reserved and devolved policy areas, and policy officials are still working through how the extension power will work in practice, but we are committed to working collaboratively with devolved officials. I am keen to discuss this policy as it progresses to ensure that the power works for all parts of the UK. The amendment would work against everything we are trying to achieve through the Bill, which is why I ask the hon. Member for Ellesmere Port and Neston to withdraw it.

[Justin Madders]

To follow on from what the hon. Member for Glenrothes has said, I think the Minister misunderstands the point of devolution if her main argument against these amendments is that we cannot have different deadlines and laws in different jurisdictions. The whole point of devolution is that each devolved nation is able to decide the laws that sit within its devolved competence. I will not push our amendment to a vote, but the answers we have received this evening are pretty inadequate.

[Brendan O’Hara]

We will press amendment 31 to a vote. I am far from satisfied with the answer that the Minister provided. We recognise that there is a power grab taking place and this Government are coming for the powers of our Parliament.

Shortly before Second Reading, I met the National Farmers Union Scotland in my constituency of Argyll and Bute. It recognises that this legislation is a potential death sentence for the Scottish agricultural sector. In rural areas, such as my constituency, the farmers require a hefty subsidy to manage the land, keep their lights on, provide employment and stem rural depopulation, while producing high-quality, high-value beef, lamb and dairy products. This legislation is a death sentence for Scottish agriculture.

Tomorrow morning I will again meet a delegation from the National Farmers Union Scotland here in Westminster, and I will be sorry to have to report to them that we have received no assurances whatsoever about the protections that this vital industry needs. That is why it is essential that we push amendment 31 to a vote.

[Justin Madders]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 31, in clause 2, page 2, line 8, at end insert—

“(1A) Subsection (1) has effect in relation to provision which is within the competence of the Scottish Ministers as if, after “A Minister of the Crown”, there were inserted “or the Scottish Ministers”.

(1B) A provision is within the devolved competence of the Scottish Ministers for the purposes of this section if—

(a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament, or

(b) it is provision which could be made in other subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate acting alone.”—(Brendan O’Hara.)

Question put, That the amendment be made.

Division 7

Ayes: 6

Noes: 9

[Brendan O’Hara]

I beg to move amendment 32, in clause 2, page 2, line 10, leave out subsection (3).

[The Chair]

With this, it will be convenient to discuss amendment 29, in clause 2, page 2, line 11, leave out “2026” and insert “2029”.

This amendment changes the date that the revocation of EU-derived subordinate legislation and retained direct EU legislation may be extended to, up to a final deadline of 23 June 2029.

[Brendan O’Hara]

The amendment is in my name and that of my hon. Friend the Member for Glenrothes. It seeks to extend the date at which revocation can take place to 23 June 2029.

As we have heard from many, many hon. Members, this Bill is a bad piece of legislation that has been badly drafted and ill conceived. As I have said, we will vote against it, as we have throughout this Bill Committee, and as we will again when it returns to the Floor of the House.

My hon. Friend the Member for Glenrothes has laid out in pretty thorough detail what a confused mess of a Bill this is, both in terms of what it is trying to achieve and how it has been so hurriedly thrown together. That is why we will soon get on to Government amendments that seek to correct basic mistakes. As my hon. Friend correctly pointed out a few moments ago, if there are that many mistakes in this legislation, goodness knows what is yet to appear and what will be missed in the coming 13 months if we are to stick to the insane timeline that the Government are working to.

Having said that we will oppose the Bill every step of the way, we feel duty-bound to highlight its most glaring deficiencies and to suggest amendments. If the Bill has to pass, it should do so in a form that does the least damage to the people who will have to live with its consequences.

It is in that spirit that we tabled amendments 32 and 29. Amendment 32 would remove clause 2(3) entirely, and amendment 29 would change the final deadline from 2026 to 23 June 2029. As we have heard many times today, arbitrary, self-imposed deadlines are rarely, if ever, useful. I again suggest, as many others have, that Government Members canvass the opinion of the right hon. Member for Camborne and Redruth on arbitrary, self-imposed deadlines.

The cliff edge makes no sense whatsoever. It appears to have been inserted into the Bill by the zealots who were then in charge of the ship, and were merrily steering it on to the rocks, as a way of preventing cooler, more rational heads from looking at the Bill and coming to the same conclusion as the rest of us: it is unworkable, ideologically driven madness. If the Bill is to work, there must be adequate time for its provisions to be put in place.

Surely all but the true believers will see the sense in the amendment. Although it would not improve the substance or intent of the Bill, it would allow for a far more reasonable timescale, and would ensure that mistakes are not made, or that when they are people are not left exposed, which will almost inevitably happen given the way the Bill is currently written; things will almost certainly be missed, and will fall off the statute book. I encourage the Minister to see this as a helpful amendment to a thoroughly rotten Bill. It is an attempt to make the Bill ever so slightly less unpalatable.

[Ms Ghani]

I ask hon. Members to reject amendments 32 and 29. In short, they delay and deny Brexit. As the hon. Member for Argyll and Bute has said himself, he opposes every step of the Bill. Amendment 32 would leave out clause 2(3), which would remove the extension mechanism’s deadline, and effectively allow retained EU law to be extended for ever more. Amendment 29 would push the date to 2029. Conservative Members are here to deliver Brexit, not to deny it. I therefore ask the hon. Member to withdraw his amendment.

[Brendan O’Hara]

I thank the Minister for her answer. As I have often said, it satisfies me not one jot, but I understand and was expecting that answer. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Joy Morrissey.)

Retained EU Law (Revocation and Reform) Bill (Fifth sitting)

Brendan O'Hara Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[Alex Sobel]

I fear we may be straying into future debates. I will not take much longer—I take your lead, Sir George. We will have further discussions about burdens and regression, so I will not labour that point. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 38, in clause 7, page 5, line 39, after “court)” insert

“in England and Wales or Northern Ireland”.

This amendment, together with Amendments 39 to 47 and (a) to Amendment 5, would remove the Scottish courts and Scottish law officers from the case law reference procedure provided for by new sections 6A, 6B and 6C of the EU Withdrawal Act 2018.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 39, in clause 7, page 5, line 42, leave out from “Court,” to the end of line 2 on page 6.

See explanatory statement to Amendment 38.

Amendment 40, in clause 7, page 6, line 35, after “court)” insert

“in England and Wales or Northern Ireland”.

See explanatory statement to Amendment 38.

Amendment 41, in clause 7, page 7, leave out lines 4 and 5.

See explanatory statement to Amendment 38.

Amendment 42, in clause 7, page 7, line 19, leave out from “Court,” to the end of line 21.

See explanatory statement to Amendment 38.

Amendment 44, in clause 7, page 8, line 40, leave out

“, the Advocate General for Scotland”.

See explanatory statement to Amendment 38.

Amendment 45, in clause 7, page 9, line 2, after “court”, insert

“in England and Wales or Northern Ireland”.

See explanatory statement to Amendment 38.

Amendment (a) to Government amendment 5, in line 4, leave out “(b) the Lord Advocate”.

Amendment 46, in clause 7, page 9, leave out lines 10 and 11.

See explanatory statement to Amendment 38.

Amendment 47, in clause 7, page 9, line 11, after “legislation” insert

“, or to the retained functions of the Lord Advocate (within the meaning of section 52(6) of the Scotland Act 1998)”.

See explanatory statement to Amendment 38.

[Brendan O’Hara]

Anyone sufficiently interested in knowing the list of amendments I am addressing can read them in Hansard. As we have heard, clause 7 seeks to relax domestic rules on judicial precedent, which will make it easier for appellate courts across the UK to depart from retained case law. The clause also delivers a mechanism by which courts of first instance can depart from otherwise binding retained case law. I therefore very much welcomed the Labour party’s amendment 79, and supported its efforts to tidy up this section of the Bill. Labour Members are right to point out that the Government’s proposals are driven by ideology, and that they have not considered the legal uncertainty and complications that will now almost certainly prevail.

We heard from Professor Catherine Barnard in an evidence session, who warned that:

“The way in which the legal system has worked and has run successfully over the decades is on the basis of incremental change rather than this really quite remarkable slash and burn approach proposed”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 15, Q26.]

That is exactly what this is: slash and burn. It is another example of how the now-departed brains behind this whole operation were moving with undue haste, total disregard for the consequences of what they were doing, and the obvious fear that a more considered approach would reveal the multitude of problems that will come with this plan.

Indeed, Alison Young, professor of public law at Cambridge University, warned us of the extreme uncertainty that could come from these new legal arrangements, saying:

“Those carrying out business and trade need legal certainty, so that they have an understanding of the rules, now and going forward.”

She added that

“the issue is that those carrying out business will not necessarily be 100% sure whether things will be retained in the long term. If so, how they will be retained? Has everything that might be revoked been listed? They are not 100% sure whether it has been revoked or not.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 14, Q25.]

That is a recurring theme throughout these proceedings.

It is against that backdrop that we have tabled these amendments, which, although plentiful in number, are all intended to do the same thing: remove Scots law wholly and entirely from this part of the Bill. I make no apology for repeating that this is not our Brexit. Scotland did not vote for Brexit. We did not vote for this reckless piece of legislation and, quite simply, we want nothing to do with it.

Government amendment 5 is another example of the UK Government completely failing to understand Scotland or our legal system. Although I welcome the amendments in so far as they go to repair the poorly drafted first version of the Bill, with the Lord Advocate now having his or her proper place in the functions of it, it pains me that Scotland has been dragged into this mess at all. Indeed, so great is the concern about the impact of the Bill on Scots law that I understand our amendments have been directly communicated to the Secretary of State by the Scottish Government’s Cabinet Secretary for the Constitution, External Affairs and Culture, Angus Robertson. I hope that, in that spirit, the Government will now accept them.

[Ms Ghani]

There is too high a bar for UK courts to depart from retained case law, including judgments made and influenced by EU courts, so I rise to resist amendments 38 to 42 and 44 to 47. Clause 7 will free our courts’ developed case law and retained EU law that remains in force, without being unnecessarily constrained by the past judgments of these foreign courts. The clause will introduce new tests for higher courts to apply when considering whether to depart from retained EU case law and retained domestic case law. Lower courts will also be given greater freedom. They will be able to refer points of law relating to retained case law to higher courts for a decision, which, if successful, could result in the lower court departing from retained case law where it would otherwise be bound by it, enabling a faster and more dynamic evolution of our domestic case law away from the influence of EU law.

The clause also provides UK Government Law Officers and Law Officers of the devolved Administrations with the power to refer points of law arising on retained case law to the higher courts where proceedings have concluded. It will give Law Officers the power to intervene in cases before the higher courts and present arguments from them to depart from retained case law. This will ensure the appropriate development of the law as we move away from the influence of EU case law and the rules of interpretation.

The amendments would remove the Scottish courts and Law Officers from the lower to higher court reference procedure and from the Law Officer reference procedure. However, consistent with EU exit legislation, these measures in the Bill will apply to the whole UK. This will give courts in all four of our great nations greater freedom to develop case law unimpeded by the excessive influence of the European courts. In addition, amendment 47 would give Law Officers of the devolved Administrations the power to intervene in reserved matters, which is not constitutionally appropriate.

Proposed new section 6C of the European Union (Withdrawal) Act 2018, established in clause 7 of the Bill, gives Law Officers the power to intervene in cases before the higher courts and present arguments for them to depart from retained case law following the new tests for departure in the Bill. These provisions are framed so that Law Officers may exercise the intervention powers on behalf of their respective Governments in cases where other Ministers or the Government as a whole have a particular view on the meaning and effect of relevant pieces of retained EU law for which they are responsible.

In the light of a new test for departure from retained case law, the powers will allow the Law Officers to bring such matters before a higher court for a decision after hearing the relevant Government’s view on the correct interpretation of relevant retained EU law. Consequently, it is right that the intervention power is not available in relation to points of law that concern the retained functions of the Lord Advocate as a prosecutor. Those functions concern legislation that is reserved to Westminster. The structure of the Law Officers’ powers is consistent with the established position of the Lord Advocate within the Scottish Government, as in other contexts the structure rightly allows the Lord Advocate to represent the Scottish Government’s views on the interpretation of devolved legislation, but not legislation that is reserved to Westminster.

--- Later in debate ---

[Peter Grant]

I do not know whether the Minister fully understood the significance of my question. We have not tabled the amendments because we think that the power is being given to the domestic Law Officers and courts of England—that is not for us to comment on. It is not even that we think that what is being proposed is wrong for the domestic Law Officers and courts of Scotland. However, what is completely wrong is for the domestic Parliament of England to legislate on the legally separate legal system of Scotland against the clear objections of the domestic Parliament of Scotland, which speaks on behalf of the sovereign people of Scotland.

If the Minister is convinced that what is proposed in the Bill is in the best interests of justice in Scotland, and if she can persuade the Scottish Parliament, the Scottish Government and the Scottish Law Officers that that is the case, there is no question but that the Scottish Government and Scottish Parliament will legislate on those terms. However, on the day after the Prime Minister and the Secretary of State for Scotland insisted that the relationship between our nations must be based on consensus, the Minister is proposing to drive a coach and horses through that consensus by insisting that this Minister and this Parliament have the right to interfere in the domestic affairs of another nation in this Union. That is a serious breach of the guarantees contained in article 19 of the Treaty of Union, and it is not acceptable.

I invite the Minister to come back, should she so wish, and advise the Committee. In preparation for the Bill, has she had any advice whatsoever on the application of article 19 of the Treaty of Union? Does she know what it says?

[Brendan O’Hara]

I absolutely associate myself with the comments made by my hon. Friend the Member for Glenrothes. It is for the Scottish Parliament and the Scottish Law Officers to decide what they can and cannot do and it is not for this place to impose that. I have always imagined that, in a partnership of equals, each partner has their voice listened to and their opinions respected. Clearly, the Union is not the partnership of equals that we have been led to believe it is. Scots law has always been independent, and it ill behoves the UK Government to try to ignore the democratically elected Scottish Parliament and the Scottish Law Officers, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara]

I beg to move amendment 35, in clause 7, page 7, line 4, leave out

“, if the point of law relates to the meaning or effect of relevant Scotland legislation”.

This amendment, together with Amendment 36, modifies the points of law on which the Lord Advocate may make a reference under the new section 6B of the European Union (Withdrawal) Act 2018 so that it is not restricted to points of law which relate to the meaning or effect of relevant Scotland legislation.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 37, in clause 7, page 7, line 5, after “legislation” insert

“, or to the retained functions of the Lord Advocate (within the meaning of section 52(6) of the Scotland Act 1998)”.

This amendment modifies the points of law on which the Lord Advocate may intervene under the new section 6B of the European Union (Withdrawal) Act 2018 so that the power to intervene may be exercised in relation to points of law which concern the retained functions of the Lord Advocate.

Amendment 36, in clause 7, page 8, leave out lines 8 to 21.

This amendment, which is consequential to Amendment 35, modifies the points of law on which the Lord Advocate may make a reference under the new section 6B of the European Union (Withdrawal) Act 2018, omitting the definition of “relevant Scotland legislation” from section 6B.

Amendment 93, in clause 7, page 9, line 10, leave out

“, if the argument relates to the meaning or effect of relevant Scotland legislation”.

This amendment, together with Amendment 48, modifies the arguments in legal proceedings on which the lord Advocate may intervene under the new section 6C of the European Union (Withdrawal) Act 2018 so that that section is not restricted to arguments which relate to the meaning or effect of relevant Scotland legislation.

Amendment 48, in clause 7, page 9, line 22, leave out “relevant Scotland legislation,”.

This amendment, which is consequential to Amendment 93, modifies the arguments in legal proceedings on which the Lord Advocate may intervene under the new section 6C of the European Union (Withdrawal) Act 2018, omitting the definition of “relevant Scotland legislation” from section 6C.

[Brendan O’Hara]

I will speak briefly about the amendments, which will remove any restraint the Bill would place on Scotland’s Lord Advocate in making reference to retained EU law.

As it stands, the Bill restricts the Lord Advocate’s power to make reference only to points of law that relate to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the power of any other UK Law Officer regarding the law of England or Wales on matters that are reserved. Again, I understand that the message has been communicated directly to the Government by the Scottish Government. On the basis that we take the issue so seriously, I ask that the Government accept our amendments.

[Peter Grant]

The comments I made in relation to the last group of amendments are equally, if not more, applicable here. I appreciate that many members of the Committee would not have thought that the submission from the Law Society of Scotland was relevant to the interests of their constituents, nor should it be. The legal systems of the two nations are entirely separate. They are required to be in perpetuity by the Treaty of Union. That is not my favourite piece of legislation, but while it is there it is incumbent on this Parliament to comply with it.

The Law Society of Scotland wanted the whole of proposed new section 6B to be deleted in its entirety. It raised a number of serious concerns in principle, many of which will apply to the application of the legislation to English courts and Law Officers as well. Proposed new section 6B changes the way in which some civil law can be challenged in the courts without changing the way in which other civil law can be challenged in the courts, so the concept of the unity of a single body of civil law starts to be weakened. The legal profession will be extremely concerned about that.

The legal profession is also concerned about the idea that after a civil case has been concluded, when the time for any appeal has passed and the case is settled, Law Officers who are not a party to the case can then intervene, effectively to act as an appellant in a case in which they have no direct interest. That process rightly applies in relation to criminal law, because almost every criminal prosecution involves the Law Officers acting in the name of the Crown on behalf of the public interest.

In fact, in Scotland nobody but the Law Officers is allowed to take a prosecution in the public interest. Bodies such as the Post Office and the Health and Safety Executive are not allowed to prosecute cases in Scotland’s criminal courts. After a case has been concluded, it is perfectly in order for the Law Officers to appeal against the leniency of a sentence, for example, because they were an interested party in prosecuting the case in the first place. That does not apply if it is a civil case, so there is a legal precedent created here that the Law Society of Scotland has raised serious concerns about, as well as very possibly the Law Society of England and Wales.

The clause again threatens compliance with the Treaty of Union—that is how serious it is, Mr Howarth. Passing the clause threatens to be in breach of article 19 of the Treaty of Union, because it makes the Law Officers of England superior to the Law Officers of Scotland. It makes the domestic courts of England superior to the domestic courts of Scotland. Why do I say that? It explicitly allows the Law Officers of England to step in and interfere in a civil case that applies only in Scotland, between two parties who are resident in Scotland and subject to the law of Scotland, where a case has been considered through due process in the domestic courts of Scotland and settled with finality as a matter of Scottish law. At that point, the Law Officers of England are allowed to wade in and interfere in a legal system that has nothing whatsoever to do with them—not on a matter of reserved legislation or one that is within the remit of domestic law in England.

The equivalent power does not apply to the Law Officers of Scotland. There are no circumstances in which Scotland’s senior Law Officers can come in and interfere in a civil case that has been heard in English courts. However, there are circumstances in which the Law Officers of England can interfere after the event in a domestic case in Scotland’s court. That is not equal treatment of the two legal systems. That is not recognition of the right of the Scottish legal system to operate independently of interference from this place. I will take advice on that and I will be interested to hear if the Minister has. That would appear to me to be a deliberate breach of one of the articles of the Treaty of Union. As many will be aware, when one article of a treaty is broken, either party has the right to consider the treaty to have been brought to an end.

I expressed my concerns in the previous sitting of the Committee that the Minister might be about to accidentally repeal hundreds of bits of legislation by mistake. I am tempted to say that we should not interrupt our opponents when they are making a mistake. If this place wants to take the risk of repealing the Treaty of Union by mistake, I will not stand in its way. However, I think I should bring it to hon. Members’ attention so that at least they cannot afterwards say they did not know what they were doing.

[Ms Ghani]

I will try to address all the points raised because I know how seriously they are taken by Opposition Members. The Committee should reject amendments 35, 36, 37, 48 and 93 as they would give Law Officers of the devolved Administrations the power to intervene in reserved matters, which is not constitutionally appropriate.

Amendments 35, 36 and 37 concern proposed new section 6B, established by clause 7 of the Bill, which provides UK Government Law Officers and Law Officers of the devolved Administrations with the power to refer points of law arising from retained case law to the higher courts, when proceedings have concluded, for consideration against the new test for departure set out by the same clause.

Amendments 48 and 93 concern new section 6C, which gives Law Officers the power to intervene in cases before the higher courts and present arguments for them to depart from retained case law following the new test for departure in the Bill. It is right that references and interventions by the Lord Advocate are restricted to the points of law within the devolved competence of the Scottish Government. The provisions are framed so that Law Officers may exercise the reference and intervention powers on behalf of their respective Governments in cases where other Administrations have a particular view on the meaning and effect of a relevant piece of retained EU law for which they are responsible.

The powers allow Law Officers to bring the matters before a higher court, in the light of the new test for departure from retained case law, for a decision after hearing the relevant Government’s view on the correct interpretation of a relevant retained EU law. That will allow Law Officers and the Lord Advocate to ensure an appropriate development of the law as we move away from the influence of EU case law and the rules of interpretation. It would consequently be inappropriate for the Lord Advocate, on behalf of the Scottish Government, to exercise the reference and intervention powers where the points of law relate to reserved legislation. That includes points of law that concern the retained functions of the Lord Advocate as a prosecutor, as those functions concern legislation that is reserved to Westminster.

We consider the structure of the Law Officer powers to be consistent with the established position of the Lord Advocate within the Scottish Government. As in other contexts, the structure rightly allows the Lord Advocate to represent the Scottish Government’s views on the interpretation of devolved legislation but not legislation reserved to Westminster. For those reasons, we ask the hon. Member for Argyll and Bute to withdraw his amendment.

[Brendan O’Hara]

I congratulate my hon. Friend the Member for Glenrothes for his very thoughtful contribution. Again, that goes to the heart of the Bill and the bonfire that the Government are setting if they get it wrong, time and again. There are dangers in treating this state as one country—that is what happens when one does not consider the devolution settlement properly. But on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Ms Ghani]

I will be brief. Conservative colleagues will be keen to know that we are accepting amendments 5 and 6, which will remove references to a “devolved law officer” and replace them with the specific titles of the law officers in Scotland, Wales and Northern Ireland where appropriate. This is a policy-neutral change requested by the Scottish Government and tabled by this Government in the spirit of collaboration and co-operation.

Amendment 5 agreed to.

Amendment made: 6, in clause 7, page 9, leave out lines 20 and 21.—(Ms Ghani.)

See the statement for Amendment 5

[Brendan O’Hara]

I beg to move amendment 49, in clause 7, page 9, line 33, at end insert—

“(11) Within three months of the passage of this Act, the Secretary of State must lay before both Houses of Parliament an assessment of the impact of this section on the commitment of the UK enshrined in article 2(2) of the Northern Ireland Protocol.”

This amendment has been tabled in my name and in that of my hon. Friend the Member for Glenrothes. A recurring theme with this Bill has been a lack of attention to detail to either the drafting or to fully understanding the consequences—unintended or otherwise—for great swathes of the UK’s Governments, the economy and wider society. It is breathtaking. The impact of the massive changes that will be brought about by the Bill has been at best an afterthought, and at worst completely ignored. It is reckless, and some could reasonably argue that it is a dereliction of duty on the Government’s part.

This lack of attention to detail will be most acutely felt in Northern Ireland, and in the impact that clause 7 could have on the protocol. Given that the primacy of EU law will be removed by this Bill, but it has been retained and reaffirmed in the Northern Ireland protocol, will the Minister explain how the two pieces of legislation are expected to interact with each other? The Government have committed to there being

“no diminution of rights, safeguards and equality of opportunity”

in Northern Ireland.

What mechanisms have been established to assess and monitor how that is working? The very least that the people of Northern Ireland deserve is a thorough and detailed assessment of the Bill’s exact impact on the protocol. That is why we ask the Secretary of State to, within three months of the Bill passing,

“lay before both Houses of Parliament an assessment of the impact”

that the Bill has had

“on the commitment of the UK enshrined in article 2(2) of the Northern Ireland Protocol.”

[Ms Ghani]

The Government have already committed to ensuring that the necessary legislation is in place to uphold the UK’s international obligations, including the Northern Ireland protocol. The UK is committed to ensuring that rights and equality protections continue to be upheld in Northern Ireland. I therefore ask the Committee to reject this amendment.

Article 2’s reference to

“no diminution of rights, safeguards and equality of opportunity”

demonstrates the UK Government’s commitment to ensuring that the protections currently in place in Northern Ireland of the rights, safeguards and equality of opportunity provisions set out in the relevant chapter of the Belfast/Good Friday agreement are not diminished as a result of the UK leaving the EU. The provisions in the Bill enable the Government to ensure that the retained EU law that gives effect to article 2 of the protocol is preserved beyond the sunset, or that an alternative provision is created to meet such requirements. The restatement power will also allow the UK and devolved Governments to codify case law and other interpretative effects where it is considered necessary to maintain article 2 commitments.

Clause 7’s provisions concerning case law do not apply in relation to obligations under the protocol. Section 6(6A) of the European Union (Withdrawal) Act continues to apply, so that our new test for departing from retained EU case law is subject to the rights and obligations in the protocol. The House already has its usual robust and effective scrutiny processes in place to hold Ministers accountable in relation to the Government’s commitments under the Northern Ireland protocol. In addition, these are bespoke arrangements in relation to the EU Withdrawal Agreement Joint Committee where the UK and EU jointly oversee each other’s implementation, application and interpretation of the withdrawal agreement, including the Northern Ireland protocol—for example, the publication of the annual report of the Joint Committee to aid Members’ scrutiny.

Adequate processes are already in place, and the introduction of a new statutory reporting requirement is not an appropriate use of Government or parliamentary time. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.

[Ms Ghani]

The preservation and restatement powers in the Bill or other existing domestic powers, such as section 8C of the European Union (Withdrawal) Act, will ensure that retained EU law that gives effect to article 2 rights is either maintained beyond the sunset or the alternative provision is created to meet such requirements. The delegated powers in the Bill, particularly the restatement powers, will provide the ability to recreate the effects of secondary retained EU law, including the interpretative effects of case law and general principles of supremacy where it is necessary to uphold article 2 rights. That provides a mechanism through which national authorities might implement article 2 obligations. As I said earlier, I asked the hon. Member for Argyll and Bute to withdraw the amendment.

[Brendan O’Hara]

I will not push the amendment to a vote, but we will return to it on Report. I remain completely unclear, given the timeframe, how EU law will be removed by the Bill, but be maintained and reaffirmed in the protocol. I am unclear how that actually works.

[Stella Creasy]

The hon. Member is making a fair point. The people of Northern Ireland deserve some clarity because, if the Bill takes away the supremacy of EU law, as we discussed earlier, but the Government are committing that there will be instances in which article 2 rights will be upheld, it would be helpful to understand what those instances are and what the process is. Who will determine what EU law can be retained? The Northern Ireland Human Rights Commission, for example, could be part of that, but it is not clear how the process works. Does the hon. Gentleman agree that we owe it to the people of Northern Ireland to set out that process now?

[Brendan O’Hara]

I absolutely agree with the hon. Lady. Such muddled thinking and the unintended consequences of pushing it through so quickly go to the heart of the Bill. There are consequences to setting a ridiculously unachievable sunset clause. The thinking time that should have gone into the Bill has not happened. Although I will not push the amendment to a vote now, I strongly urge the Government to work on it to be able to explain on Report exactly how the measure will work. It is far too important to the people of Northern Ireland to let it wither on the vine and hope it does not come back. This is hugely important, but I will not press it a vote.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

[Ms Ghani]

The bar for the UK courts to depart from retained case law in the judgments of EU courts is too high, and there continues to be an overriding desire for our judicial decisions to remain in line with the opinion of the Court of Justice of the European Union. Clause 7 will free our courts to develop case law and retained EU law that remains in force without being unnecessarily constrained by the past judgments of these now foreign courts.

Question put and agreed to.

Clause 7, as amended, accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Joy Morrissey.)

Retained EU Law (Revocation and Reform) Bill (Sixth sitting)

Brendan O'Hara Excerpts

Committee stage
Thursday 24th November 2022 Public Bill Committees

[Peter Grant]

The difference, of course, is that any secondary legislation—even if it is done by the affirmative procedure—goes through a Delegated Legislation Committee in which, at best, three or four of the parties in this House are represented. For the last seven and a half years, the Scottish National party has been represented in those Committees because of the exceptional level of support that it enjoys in our country, but there are Members of Parliament, who collectively represent the interests of a lot of constituents, who never get on to Delegated Legislation Committees. The only chance they get to question the Minister about secondary legislation is if the Minister makes an oral statement before the House. Publishing something is all very well, but Members of Parliament who are not in one of the big three or four parties do not get the automatic right to question Ministers on a written statement—they do get the automatic right to questions Ministers on an oral statement. It is quite clear which way this is going, so I will not detain the Committee by pushing the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 51, in clause 10, page 11, line 18, leave out from “paragraph 3” to the end of line 23 and insert

“may not be so made, confirmed or approved unless a draft of the legislation has been laid before, and approved by resolution of, (as the case may be) both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly.”

The amendment is in my name and that of my hon. Friend the Member for Glenrothes. As we have argued since the date of publication, the Bill not only undermines the devolution settlement, but puts at risk workers’ rights, product safety, food labelling, the future of the agricultural sector, and the natural environment. Clause 10 allows for all that to happen with the bare minimum of parliamentary scrutiny, allowing everything to be dealt with via secondary legislation, and thereby conveniently avoiding the intense parliamentary scrutiny that these measures most certainly require. Clause 10 would make it easier for the Government to remove our rights and protections by using delegated powers, and therefore circumvent parliamentary scrutiny, avoid transparency and evade accountability to all Members of Parliament. This is the Executive power grab people have been talking about since the day the Bill was published.

When the Bill was published, the Government told everyone who would listen that this was all about the United Kingdom taking back control and asserting the sovereignty of this Parliament, as opposed to—in their words—shady deals being agreed in small committees in Brussels, but it does not feel like that. Who exactly is it that is taking back control here? It is not this Parliament, and it is not Members of this House, because the Government have already gleefully announced that when it comes to retained EU law,

“the amount of parliamentary time that is required has been dramatically reduced.”

It seems that for the Government taking back control means putting a group of hand-picked party loyalists on to a Delegated Legislation Committee—a Committee that, as we know, has a built-in Government majority—which will bulldoze through change after change after change, as instructed. The history of DL Committees is not particularly encouraging; in the past 65 years, only 17 statutory instruments have been voted down by a DL Committee—and that has not happened since 1979.

Although there is certainly a role for DL Committees, I do not believe that that extends to them making wholesale, fundamental changes to vast swathes of the law—on matters covering everything from the environment, nature and consumer protection through to workers’ rights, product safety and agriculture—just to help the Government avoid proper parliamentary scrutiny. The reason they are avoiding parliamentary scrutiny is that, in their fervour to get rid of any lingering European influence, the wide-eyed zealots at the heart of this dysfunctional Government have arbitrarily imposed a sunset clause for December next year. This is not just the view of the Opposition; it is a widely-held view. Professor Catherine Barnard warned against the lack of parliamentary scrutiny afforded, saying:

“Although there is a process for parliamentary oversight, it will be difficult in the timeframe to ensure that that oversight can be exercised in a manner that enables Parliament properly to scrutinise the measures as they come through.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 16, Q27.]

In his evidence, George Peretz KC warned,

“One of the problems with the effectiveness of parliamentary scrutiny is that although one hears that Parliament has powers… the background against which it is being asked to approve legislation means that if it votes against that legislation, the sunset clause will apply and regulations disappear completely, rather weakening Parliament’s ability to do anything.”––[Official Report, Retained EU Law Public Bill Committee, 8 November 2022; c. 32, Q61.]

--- Later in debate ---

[Ms Ghani]

I think we have covered the point of domestic law, law in Westminster and the role of Attorneys General. At the moment, we are forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. It is no longer appropriate for retained direct EU legislation to keep the status of primary legislation when most of it has not had anywhere close to the same level of UK parliamentary scrutiny. I therefore ask the hon. Member for Argyll and Bute to withdraw the amendment.

[Brendan O’Hara]

I will withdraw the amendment, but it is something that we will return to on Report. This is an Executive power grab; it is a weakening of the role and influence of Members of Parliament in favour of the Executive. It is intolerable, and I hope that, when we do get to discuss it on Report, we will have the combined support of the Opposition. This is a dangerous road that we do not want to go down, and something we should avoid at all costs. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to debate that schedule 1 be the First schedule to the Bill.

--- Later in debate ---

[Ms Ghani]

I ask hon. Members to reject the amendment. Unless I was in a different Committee Room, or on a different planet, I think Opposition Members have had every opportunity to raise their voices, because we have heard much from them today and on Tuesday, and we have had much scrutiny as well. Our constituents know exactly what we are doing because it is all noted in Hansard.

The amendment would render clause 11 without purpose. Subsections (1) and (2) ensure the removal of additional parliamentary scrutiny requirements, established in the EU withdrawal Act, in relation to the amendment or revocation of secondary legislation made under section 2(2) of the European Communities Act 1972. Subsections (1) and (2) will ensure that when secondary legislation made under section 2(2) ECA is being amended or revoked using other delegated powers, the only parliamentary scrutiny requirements that will apply are those attached to the power being used. These delegated powers have their own parliamentary scrutiny procedure attached, which has been approved by Parliament, ensuring suitable scrutiny will continue to occur.

It is imperative that additional scrutiny requirements are removed, because it is clearly inappropriate that legislation created solely to implement our obligations as a member of the EU enjoys this privileged status. What is more, no tangible benefit has been identified as a result of these scrutiny requirements; as was mentioned, that was referenced in the evidence session by Dr Ruth Fox of the Hansard Society. In practice, they add a layer of complexity that makes it difficult to make amendments to legislation containing section 2(2) ECA provisions.

Removing these requirements reflects the main purpose of this Bill, which is to take a new approach to retained EU law, removing the precedence given in UK law to law derived from the EU that is no longer considered fit for purpose.

[Brendan O’Hara]

The Minister said that we get our voices heard, including in this Committee, and that may well be true for the Government, the official Opposition and SNP members. However, we have heard a lot today about Northern Ireland. When is the voice of the Democratic Unionist party and the Social Democratic and Labour party going to be heard? We have heard a lot about the environment, but where is the voice of the Greens? Where is the voice of Plaid Cymru? Where is the voice of the Liberal Democrats? They will not be heard in a Delegated Legislation Committee. We are not talking about the voice of Parliament, but the voice of a DL Committee, which is very restricted.

[Ms Ghani]

The hon. Member is not being wholly honest. The level of scrutiny of any piece of legislation, not only in Committee but on the Floor of this House and the Floor of the other place, takes place for all items of legislation.

The hon. Member will be well aware of the evidence session we had just a few weeks ago, when we had a number of people from environmental agencies who previously had Green credentials or who were previously Green or Lib Dem candidates. So it is not as if those voices are not heard.

[Peter Grant]

rose—

[Brendan O'Hara]

rose—

[Ms Ghani]

I therefore ask the hon. Member for Ellesmere Port and Neston to withdraw his amendment.

[Brendan O'Hara]

rose—

[The Chair]

I know you were trying to intervene. Do you want to make a speech?

[Brendan O'Hara]

No, I was trying to intervene on the Minister.

[The Chair]

I call Justin Madders.

--- Later in debate ---

Power to restate retained EU law

[Brendan O’Hara]

I beg to move amendment 53, in clause 12, page 15, line 1, leave out subsection (3).

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 8 and 9.

Amendment 54, in clause 12, page 15, line 13, leave out subsection (7).

Clause stand part.

Government amendments 10 to 13.

Clause 13 stand part.

[Brendan O’Hara]

I will speak to amendments 53 and 54 on behalf of myself and my hon. Friend the Member for Glenrothes. Members will be aware that clause 12 is about the mechanism that will allow UK Government Ministers, or Ministers in the devolved Administrations, to restate or protect current retained EU law so that it does not fall away automatically at the end of 2023.

Thanks to the insidious Internal Market Act 2020, there is, as with so much of this Bill, huge confusion about which areas are devolved and which areas remained reserved. That problem was recognised by Charles Whitmore from the school of law and politics at Cardiff University when he gave evidence. He highlighted the issues surrounding restatement powers, particularly for the devolved Governments, taking into account the role of the Internal Market Act. He told the Committee:

“If you start thinking about the different uses that might be made of the restatement powers, and which parts of the UK might take different approaches to supremacy and the general principles, the level of uncertainty really does start to get quite extreme.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 85, Q141.]

Of course, Mr Whitmore was absolutely right to make that assessment, but it is just one of multiple problems with the clause, because it allows Ministers the freedom to decide exactly how much EU law they want to restate or protect. It lets the Government view the existing statute book as something of a smörgåsbord, whereby they can pick and choose which parts of the law they wish to keep and which parts, simply by their inaction, they will allow to disappear in December next year. For example, they could brazenly announce that they have decided to protect workers’ rights by restating them, when in reality they will have saved only the bare minimum of regulations—the ones that suit them, rather than the whole suite of laws that combine together to provide what we currently understand to be workers’ rights.

Another huge problem with the clause—indeed, it is a problem that runs throughout the Bill like the writing through a stick of rock—is that it has yet another one of those self-imposed, utterly unachievable and ideologically driven sunset clauses. It is no surprise that the clause has been criticised by the Law Society of Scotland’s Michael Clancy, who warned in his evidence to the Committee that there was a real danger that the restatement provisions contained in the clause could create further uncertainty. He said:

“There is also a lack of clarity about what comes afterwards.  It will be difficult for citizens and businesses to deal with even the provisions about replacement, restatement and the creation of the new category of assimilated law in a short—apparently very compressed—period of time, and without the adequate consultation that one would expect when this sort of law is changed.”––[Official Report, Retained EU Law (Revocation and Reform) Public Bill Committee, 8 November 2022; c. 84, Q141.]

Clause 12(3) declares that should a piece of legislation be restated and an extension be granted beyond December 2023, the legislation cannot be regarded as retained EU law. That appears particularly petty, if not vindicative, and it reflects the almost irrational hatred and loathing of anything connected to the European Union, however loosely. Our amendment 53 would remove subsection (3), meaning that the retained EU laws that the UK, Scottish, Welsh or Northern Irish Governments wish to restate will still be what they are: retained EU law.

Amendment 54 would remove the arbitrary deadline of 31 December 2023 proposed in subsection (7). As we have heard numerous times, that impossibly tight deadline is only there for narrow ideological reasons and is a disaster waiting to happen. Amendment 54 would remove the dangerous cliff edge by deleting subsection (7) entirely.

As we have said throughout, we will help to improve the Bill, which is a truly awful piece of legislation, wherever we can, and that is what amendments 53 and 54 are designed to do. We want to make the Bill a little less damaging to the statute book and, more importantly, to those whose lives and livelihoods depend on there being robust law and regulation in place.

--- Later in debate ---

[Ms Ghani]

I hope I am not failing to understand the question. As I mentioned, each of the REUL Bills is assigned to a Department, and it will be for the Ministers responsible for the REUL Bill to make a decision on whether they need to assimilate, repeal or update.

I ask the hon. Member for Argyll and Bute to withdraw his amendment. I ask the Committee to accept the Government amendments. They are simple clarificatory amendments that ensure that the restatement powers in clauses 12 to 14 cannot be used to bring back EU law concepts, such as the principle of supremacy, or general principles that the Bill aims to sunset.

[Brendan O’Hara]

The Minister is right. As we have said from day one, we oppose the Bill, but if it has to pass—history and the numbers in the room tell us that it will pass—it will do so without our support. As we have said, we have a duty not to ignore the most egregious parts of this legislation. Where we think that it will hurt people, affect businesses or leave holes in the statute book, or is ideologically driven folly, we will oppose it, and point out the problems to the Government, so that, as my hon. Friend the Member for Glenrothes said, there cannot come a time when the Government say, “We didn’t know. Nobody told us this was happening.” Our role here is to oppose every step of the way, but also point out in as much detail and with as much clarity as we can where this dreadful piece of legislation is almost inevitably headed. We will pick the matter up, I am sure, on Report, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 8, in clause 12, page 15, line 2, leave out “legislation” and insert “the thing”.

This amendment provides that effects produced by virtue of the retained EU law referred to in subsection (5) do not apply in relation to anything that is codified.

Amendment 9, in clause 12, page 15, line 10, leave out “of legislation”.—(Ms Ghani.)

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (4).

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13

Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc

Amendments made: 10, in clause 13, page 15, line 29, leave out “legislation” and insert “thing”.

This amendment provides that effects produced by virtue of the retained EU law referred to in subsection (4) do not apply in relation to anything that is codified.

Amendment 11, in clause 13, page 15, line 33, leave out “of legislation”.

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (4).

Amendment 12, in clause 13, page 15, line 36, leave out “of legislation”.

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (7).

Amendment 13, in clause 13, page 15, line 40, leave out “legislation” and insert “thing”.—(Ms Ghani.)

This amendment enables regulations to produce, in relation to anything that is codified, an effect equivalent to an effect mentioned in subsection (7).

Clause 13, as amended, ordered to stand part of the Bill

Clause 14

Powers to restate or reproduce: general

[Alex Sobel]

I beg to move amendment 82, in clause 14, page 16, line 18, at end insert—

“(1A) No regulations may be made under section 12 or 13 unless all the following conditions have been satisfied.

(1B) The first condition is that the relevant national authority has consulted on a draft of the regulations with organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, those regulations.

(1C) The second condition is that, after that consultation has concluded, the relevant national authority has laid a report before each House of Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) setting out—

(a) the authority’s view as to whether the proposed regulations make any change in the rights of and protections for consumers, workers, and businesses, and protections of the environment and animal welfare, and the reasons for that view;

(b) whether in making the regulations the national authority has considered using its discretion under section 12(6), section 13(6), or subsection (2), (3) or (4) of this section, and if so, the reason why it does or does not intend to exercise that discretion.

(1D) The third condition is that a period of sixty days has passed since that report was laid, with no account to be taken of any time during which Parliament (or, as the case may be, the Scottish Parliament, Senedd Cymru, or the Northern Ireland Assembly) is dissolved or prorogued or during which it was adjourned for more than four days, and where they were laid before Parliament, paragraph 8(11)(a) of Schedule 3 shall apply in determining the commencement of that period.”

This amendment requires the national authority to consult on a draft text of “restatement” regulations, and to set out its reasoning on the choices made when drafting those regulations to Parliament or the relevant devolved legislature.

Retained EU Law (Revocation and Reform) Bill (Seventh sitting)

Brendan O'Hara Excerpts

Committee stage
Tuesday 29th November 2022 Public Bill Committees

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 70, in clause 16, page 18, line 25, at end insert—

“(1A) Before the power in subsection (1) may be exercised, the relevant national authority must publish a written statement on any societal and economic changes relevant to the intended modifications.”

[The Chair]

With this it will be convenient to discuss clause stand part.

[Brendan O’Hara]

It is a pleasure to see you in the Chair, Sir Gary, for our final day of scrutiny of the Bill. The amendment was tabled in my name and that of my hon. Friend the Member for Glenrothes. It will be a relief to the Committee that I will be as brief as I can, as I know we have an awful lot to get through.

Clause 16 allows a relevant national authority to make modifications to secondary legislation that it considers appropriate, taking into account

“changes in technology, or…scientific understanding.”

We do not disagree with that. Our amendment simply seeks to widen the scope of the clause by allowing relevant national authorities not just to consider changes in technology and developments in scientific understanding, but to take into account societal and economic changes that may be pertinent when making modifications to retained EU law.

It is the narrowness of the clause that concerns us the most. It has been highlighted as a potential problem by the Law Society of Scotland, which in its excellent briefing paper suggested widening the scope to reflect other factors and include economic or societal changes. It seems eminently sensible to include factors that go beyond science and technology. Whether we like it or not, things happen in society that we cannot reasonably predict. It would therefore be unwise for the legislation to be so completely straitjacketed that we could not react appropriately to unpredicted societal events.

Similarly, giving relevant national authorities the ability to pivot when changes to the economic circumstances dictate also seems logical. Imagine we had been examining the Bill before the summer, and I had tabled an amendment that would have allowed relevant national authorities the flexibility to consider changes in economic circumstances when considering retained EU law. Had I based my argument around a Conservative Prime Minister resigning and forcing a lengthy leadership election, and the arrival of a new Prime Minister who promptly tanked the economy and then resigned six weeks later, everyone on the Government Benches would have howled with derision, but that is precisely what happened.

As much as we like to think we know what is around the corner in terms of society and the economy, the truth is that we simply do not. That is why, again in the spirit of trying to be helpful and improve what is a thoroughly dreadful piece of legislation, I commend amendment 70 to the Government.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Sir Gary. I was sorry to read that you may not be seeking re-election. I know that social media is not always truthful on such things, but what I read appeared to be legitimate, and I will be sorry to see you go. I welcome the Minister in the Jack Grealish role, coming in late in the day to retrieve a seemingly lost position for the Government.

I understand that we are dealing with clause 16 stand part as well as amendment 70. I thank the hon. Member for Argyll and Bute for moving the amendment, which is very similar to some of ours. It will be no surprise that we are sympathetic to and supportive of it, but to avoid repeating what we have said previously I will try to keep my statements brief. Government Members will be tired of hearing this, but those who are tired of scrutiny are tired of democracy itself, so I will yet again refer to the lack of scrutiny and consultation that are the hallmarks of the Bill.

Amendment 70 offers a means to address that problem in the specific and possibly limited circumstances in which clause 16 will apply. We know how often the Government like to use the phrase “specific and limited circumstances”. The amendment contains the guiding principle of our new clause 9, which was previously debated: the Government and relevant national authorities need to address the impact of changes made by the use of the Bill’s powers. Having Ministers of the Crown produce written statements about intended modifications will ensure not only that the societal and economic impacts of changes are considered, but that they are justified, which, as we have discussed, ought to provide a greater level of accountability. Despite the fact that the amendment could benefit from extra conditions—for example, mandating a programme of consultation with relevant stakeholders—it serves the purpose of demanding greater scrutiny. Given that the Government rejected our new clause, which previously requested that, I suspect we will not find favour with this one.

--- Later in debate ---

[Graham Stuart]

In so far as I understood the hon. Gentleman’s question, the powers are circumscribed. They are designed to deliver the technical changes necessary and are certainly not meant to lead to substantive changes in policy. That would absolutely not be within the scope of the clause.

On that basis, I ask the hon. Member for Argyll and Bute to withdraw his amendment.

[Brendan O’Hara]

I thank the Minister for his response. I also thank the hon. Member for Ellesmere Port and Neston for his support. I still do not quite understand why the Government have been so deliberately restrictive in the scope of clause 16. In common with much of the Bill, the Government’s complete refusal to accept any reasonable amendments is worrying. The amendment is not party political, but arose directly from a suggestion from the Law Society of Scotland. I will not pursue it to a vote, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.

Clause 17

Power to remove or reduce burdens

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Graham Stuart]

Clause 19 establishes a power to make consequential provision. It is necessary to enable the UK Government to make appropriate provision in consequence of the Bill. That includes the ability to modify any enactment, including provisions in the Bill. The power in the clause is exercisable by a Minister of the Crown and can be used to make regulations by statutory instrument.

You might not know it from listening to the debate, Sir Gary, but the inclusion of such a power is standard practice for Bills in respect of which minor additional changes to legislation may be necessary as a consequence of the changes brought forward by the Bill. Consequential amendments to legislation may be necessary to ensure that the UK statute book continues to function effectively. It is therefore appropriate that the power be included in the Bill to enable UK Government to deal with consequential amendments—and strictly consequential amendments.

The consequential power is subject to the negative procedure. If the power is used to amend primary legislation, it will be subject to the draft affirmative procedure to ensure the sufficient level of scrutiny. It is in fact entirely appropriate and proportionate.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Regulations: general

[Brendan O’Hara]

I beg to move amendment 64, to clause 20, page 20, line 13, at end insert—

“(1A) A Minister of the Crown may not include in regulations under this Act any provision which is within the devolved competence of any devolved authority as defined in paragraph 2 of Schedule 2.”

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

That schedule 2 be the Second schedule to the Bill.

[Brendan O’Hara]

The amendment was tabled in my name and that of my hon. Friend the Member for Glenrothes and takes us back to a recurring theme of this Bill Committee—namely, the incursion by the UK Government into areas that are, and have been since the establishment of the Scottish Parliament more than 20 years ago, wholly devolved.

I assure Members that before today is out they will have heard a great deal more about the power grab that is happening and how the Bill and its partner, the United Kingdom Internal Market Act 2020, are systematically undermining the devolution settlement and stripping powers from our Parliament. The amendment would simply protect the integrity of the devolution settlement by preventing a UK Minister from revoking any piece of retained EU law that currently sits within the competency of the Scottish Government, as defined in paragraph 2 of schedule 2.

The Union is hanging by a thread. The polls increasingly show a pro-independence majority, and among young voters in particular that majority is substantial and growing. We have heard lots of talk about the partnership of equals and how Scotland has an integral place in this so-called precious Union; those may be nice words and easy for politicians to say, but the problem is that fewer and fewer Scots believe it any longer. Not only have we been dragged out of the European Union in the face of an overwhelming desire to remain a member, but in the past weeks we have discovered that this is not a voluntary Union after all. We cannot decide our constitutional future without the permission of this place. Now, with this Bill, coupled with the insidious United Kingdom Internal Market Act, we have to sit and watch the powers of our Parliament being eroded and our democracy being dismantled.

I challenge the Government to prove me wrong and show the people of Scotland that this place is no threat to our Parliament and our democracy by accepting amendment 64 and allowing our Government to act according to the mandate given to them in 2007, 2011, 2016 and, again, in 2021. That mandate is to keep our regulations in lockstep with the European Union if that is what we choose to do.

[Alex Sobel]

I shall speak briefly to schedule 2. The need for the Government to act with devolved authorities when provisions are outside the devolution settlement makes a lot of sense. We are currently in a situation in Northern Ireland in which there is no Executive, the Assembly is not functioning and the Northern Ireland protocol, which is hugely affected by the Bill, is effectively broken. The schedule 2 powers will, in the end, as things stand—they do not look like they are going to change in the near future—be enacted by a UK Minister of the Crown rather than by the devolved authority, whether with or without a Minister. I note that that is made explicit. So we have a situation in which, although the Bill cannot have any impact on what happens regarding the Executive, there is a mismatch between what is happening de facto in Northern Ireland and de jure in the Bill. That creates a dichotomy, so will the Minister tell us how he thinks that will resolve itself, considering that a new Executive is nowhere in sight?

--- Later in debate ---

[Graham Stuart]

I urge the Committee to reject the amendment tabled by the hon. Member for Argyll and Bute. It would prevent UK Ministers from making provisions within the competence of any devolved authority in respect of any of the powers in the Bill. As Members will be aware, the UK Government are committed to respecting the devolution settlements and the Sewel convention. The territorial extent of the Bill is UK-wide, and it should take effect UK-wide so that the benefits of Brexit can be seized across all four nations of the UK.

Conferring the powers concurrently ensures that the UK Government are able to legislate on behalf of a devolved Government who do not intend to take a different policy position. That will ensure that the most efficient and appropriate approach to the reform of retained EU law can be taken in every situation. Because of the nature of retained EU law, the edges of where UK Government competence ends and devolved competence begins are not always absolutely clear, so it is important that UK Ministers are able to make provision in areas of devolved competence to ensure that nothing important falls between the areas of reserved and devolved competence.

When using the powers in the Bill, we will use the appropriate mechanisms, such as common frameworks, to engage with devolved Governments, enable us to take account of the wider context and allow for joined-up decision making across the UK. The idea that we are riding roughshod over the devolution settlement is incorrect.

The hon. Member for Leeds North West mentioned Northern Ireland. The powers in the Bill are concurrent partly so that we can work with the Northern Ireland Executive—when there is one—to ensure that the Northern Ireland REUL required to operate the withdrawal agreement and the NIP is preserved.

I think I have answered most of the points that were made—I hope so, anyway—so I ask the hon. Member for Argyll and Bute to consider withdrawing his amendment.

[Brendan O’Hara]

Over the course of today, I will give the Government numerous opportunities to show that they respect the devolution settlement and that they are not intent on usurping powers from our Parliament. Given their past record, I had no expectation that they would accept amendment 64, but I never wanted it to be said, in future, that they did not understand what they were doing, or that it was somehow accidental. The Minister said that it is not clear what is devolved and what is reserved. It is absolutely clear: it is in the Scotland Act 1998, which says clearly that if it is not reserved, it is devolved. We will vote against schedule 2, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Question put, That the schedule be the Second schedule to the Bill.

--- Later in debate ---

Division 15

Ayes: 7

Noes: 9

[Brendan O’Hara]

I beg to move amendment 69, in schedule 3, page 33, line 10, at end insert—

“Consent of Scottish Ministers

8A Before making regulations to which this Part of this Schedule applies, a Minister of the Crown must obtain the consent of the Scottish Ministers.”

This amendment modifies the powers which are conferred on Ministers of the Crown in devolved areas so that they may only be exercised with the consent of the Scottish Ministers.

Amendment 69, tabled in my name and that of my hon. Friend the Member for Glenrothes, simply adds a line to the end of schedule 3 that, in layman’s terms, would prevent the UK Government from acting in areas of devolved competence without the consent of the relevant Scottish Government Minister or Ministers. In previous sessions, we have discussed how the UK Government plan to avoid parliamentary scrutiny by packing Delegated Legislation Committees of this House, and using secondary legislation to dispose of thousands of pieces of retained EU law.

The Minister has heard that we on these Benches are deeply concerned about the lack of parliamentary scrutiny. Although we who work in this Parliament might be concerned, it is completely unacceptable that the Governments and parliamentarians across these islands will be excluded from those Committees and will have to sit and watch us. My hon. Friend the Member for Glenrothes pointed out that they will have to watch as members of a party that has not won an election in Scotland since 1955 push through change after change to legislation in areas that have been—and are—wholly devolved, and which the people of Scotland and its democratically elected Government do not want changed.

It is yet another example of things being done to us, against our wishes, by a Government who we did not elect. I say to the UK Government that amendment 69 is another opportunity to show the people of Scotland that you value their opinion, you respect their Parliament and Government, and you wish to respect the devolution settlement. I urge you to accept this amendment. If you do, then maybe you will go some way to letting the people of Scotland know that you are not coming for our Parliament or our powers.

[The Chair]

Just a reminder that “you” is me. Does the hon. Gentleman mean the Minister, because I love the people of Scotland?

[Brendan O’Hara]

Absolutely, Sir Gary. I have no idea what you wish to do after you leave this place, but I am certain it is not that. If the Minster accepts the amendment, that would maybe go some way to showing that his Government are not coming after our powers or our Parliament.

[Graham Stuart]

I urge the members of the Committee to reject the amendment. As they are aware, the Bill contains a sunset date of 31 December 2023, by which all retained EU law will be removed or reformed. That date was chosen to create the impetus for REUL reform and enact change at the earliest opportunity. The Bill has been drafted to ensure that the sunset date is workable, but it is pivotal that there are no impediments or delays in that process. A delay of a month or more to seek consent would make it more difficult for the necessary regulations to be laid before that date. That risks the inadvertent sunsetting of laws that Departments have identified they wish to keep.

[Graham Stuart]

I congratulate the hon. Gentleman and his colleague, the hon. Member for Argyll and Bute, on the mental and political gymnastics through which they put themselves in order to make out that perfectly reasonable, fair, proportionate and devolution-friendly legislation is somehow an affront to the Scottish people and devolution. It takes a particular turn of mind and will to twist everything into a grievance, even when that is not borne out as a reasonable outcome.

The UK Government take into account a variety of factors when seeking delegated powers in devolved areas. Each Bill is drafted according to its specific policy intent and the most appropriate way to effect those policy changes. The powers for the UK Government to make statutory instruments in devolved areas are not new, and have been used across a wide range of policy areas since the advent of devolution. That is because it is often appropriate for the UK Government to amend existing, or introduce new UK-wide regulations, including in devolved areas. That approach is more efficient and ensures greater coherence across the UK, as well as making it easier for our stakeholders.

Furthermore, the amendment would impose on UK Ministers a consent requirement from Scottish Ministers for provisions in areas of devolved competence. As I said, the boundaries are not always clearcut and could give rise to litigation, which might result in regulations being struck down by the courts.

The Bill is not intended to take powers from the devolved Governments and nothing in our proposed legislation affects the devolution settlements. In fact, the powers under the Bill will give the devolved Governments greater flexibility to decide how they will regulate those areas governed by retained EU law in the future. That will enable the Scottish Government to make active decisions about retained EU law within their devolved competence for the benefit of citizens and businesses in Scotland. What a shame that we did not hear any of that reflected in the contribution of the SNP spokesman, the hon. Member for Argyll and Bute.

The Government remain committed to continuing discussions with the devolved Governments throughout the passage of the Bill to ensure that the most efficient and appropriate approach to REUL reform can be taken in every situation in a way that works and provides certainty for all parts of the UK. As I said and do not apologise for repeating, the Scottish Government will be able to make active decisions about retained EU law within their competence. They need to get on with that and not have their representatives in this Parliament making out inaccurately that the Bill makes impositions on Scotland that it does not.

[Brendan O’Hara]

It is nice to see the Minister revert to type. Having been regaled for the past two or three days by someone with a slightly more considered approach, it is nice to see that the Government’s gloves have finally come off. We are getting down to the nitty-gritty of the Bill.

Let us be absolutely clear: this Bill is a full-on attack on the devolution settlement. Coupled with the United Kingdom Internal Market Act 2020, this is an attack on our Parliament and our power. The idea that the Bill is “devolution-friendly” is literally laughable, as he heard from the reaction to it of me and my hon. Friend the Member for Glenrothes.

To be clear, that date of 31 December was chosen without consent. No one asked the Scottish Government or the Scottish Parliament if they agreed to that date. The date is ideological, arbitrary and a cliff edge 13 months from now, and it is almost certain to fail. It is an impossible target to achieve, and it will not be achieved. I say to the Minister again: we are giving him and his Government the opportunity to show that they respect the devolved settlement and Administrations. The amendment gives them the opportunity to say once and for all: “We respect you, listen to you and value your contribution.”

Despite all the Minister has said, I urge him yet again to accept the amendment. If he does not, however, I will not press it to a vote.

[Peter Grant]

It is not only in their debate style that we have seen a complete contrast between the Minister and his colleague the Minister for Industry and Investment Security, who was in Committee last week. We should remember what the Minister’s colleague said last week about the need for the 31 December deadline and how achievable it was. When we raised concerns that bits of legislation will be repealed by mistake, that was scaremongering. When we raised concerns that if the Government force through 90,000 job cuts in the civil service, civil servants who are already overworked will be put under impossible pressure, that was scaremongering as well. When we warned that the pressure would lead to more mistakes being made than would be acceptable or sustainable, that was scaremongering because the civil servants would get it right first time in just over a year. Now we are being told that a delay of a month in a small minority of some of these 4,000 bits of legislation would be so catastrophic that it cannot even be allowed in the name of simple democracy or simple courtesy.

If the Minister is concerned that a month’s delay is too long and if the Government are really on top of the problem, as they keep telling us they are, they could send a message to the devolved Governments today to say: “These are the parts of retained EU law that we think have got a direct impact on your devolved powers. We only need to give you a month to decide whether or not to give consent. But because the Government are in control and we know what we are doing, we can give you six months. If you come back in six months and tell us whether you consent, we still have three months to negotiate any differences and then a full three months to put the legislation in place.” That is how the Government would manage the situation if, first, they really were in control and knew what they were doing, of which we have seen very little evidence so far, and secondly, if they really believed in and respected the spirit of devolution.

The spirit of devolution is that there will be different answers in the four different nations of the United Kingdom because there are different needs, different priorities and, as we see, more and more different expressions of political will. On that point, the Minister keeps referring to the suggestion that Government Members understand and respect the will of the people of Scotland. We are prepared to put that to the test at any date of the Government’s choosing. The Government are running away from the will of the people of Scotland.

[Brendan O’Hara]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

Just a gentle reminder that we are sometimes in danger of making Second Reading speeches on some of the amendments. We all know the rules, so let us keep our focus on the amendment in hand.

Question proposed, That the schedule be the Third schedule to the Bill.

--- Later in debate ---

[Graham Stuart]

Schedule 3 specifies how the powers in the Bill will be exercised through regulations made by statutory instrument or the relevant equivalent in the devolved Administrations. The schedule sets out the parliamentary procedure applicable to specific powers in the Bill, including in cases where instruments contain combined provisions using a number of powers. It provides for equivalent procedures to apply in the devolved legislatures and for joint procedures to be available when Ministers of the Crown are making regulations jointly with devolved authorities.

The hon. Gentleman asked about the sifting procedure. The sifting procedure will apply to legislation made under clause 12, the power to restate retained EU law; clause 13, the power to restate assimilated law or sunsetted EU rights, powers, liabilities and so on; and clause 15, powers to revoke or replace, where Ministers decide to use the negative procedure. The sifting procedure largely corresponds with the sifting procedure under the European Union (Withdrawal) Act 2018 and under the European Union (Future Relationship) Act 2020. In both cases, sifting was effectively used to ensure proportionate parliamentary scrutiny on legislation regarding EU exit.

Under the procedure, recommendations on the appropriate procedure from both Committees, in the House of Lords and House of Commons, must be received before the instrument can be made. If either Committee recommends that the instrument should be subject to the draft affirmative procedure, the Minister must either follow that recommendation or publish a written statement explaining why they disagree with the Committee’s recommendations. If no recommendations have been received from the Committees after 10 days, the legislation can be made under the proposed procedure.

The sifting procedure will provide additional scrutiny of the powers while retaining the flexibility of using the negative procedure when and only when there are good reasons for doing so. The Government recognises the significant role Parliament has played in scrutinising instruments subject to these sifting procedures and are committed to ensuring the appropriate scrutiny of any secondary legislation made under the delegated powers in the Bill.

Question put and agreed to.

Schedule 3, as amended, accordingly agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22

Commencement, Transitional and savings

[Brendan O’Hara]

I beg to move amendment 66, in clause 22, page 21, line 39, at end insert—

“(aa) section [Impact assessments];”.

[The Chair]

With this it will be convenient to discuss new clause 3—Impact assessments—

“The Secretary of State must publish an assessment of the impact of the

(a) revocation of any—

(i) EU-derived subordinate legislation, or

(ii) retained direct EU legislation, or

(b) removal under section 3 of any rights, powers, liabilities, obligations, restrictions, remedies or procedures saved by virtue of section 4 of the European Union (Withdrawal) Act 2018 at least three months before the revocation or (as the case may be) removal takes effect.”

[Brendan O’Hara]

I will be mercifully brief. The amendment stands in my name and that of my hon. Friend the Member for Glenrothes. The amendment and new clause 3 would oblige the UK Government to provide an impact assessment on what they believe the likely consequences would be of any withdrawal of a piece of legislation before any revocation of the EU law takes place. That impact assessment should be published three months ahead of any scheduled revocation date.

The Government may see that requirement as a tad onerous, but it simply reflects the gravity of what the Government are planning with retained EU law. It would ensure that, rather than having the planned bonfire of legislation, the Government and their Departments of State are forced to consider very carefully and in great detail exactly the consequences of what they are about to do. Is that not what our constituents would expect of this Parliament and its parliamentarians—to consider very carefully the consequences of each piece of action that it takes and what impact it may have on those constituents, their businesses and livelihoods? I urge the Government to accept the amendment and new clause.

[Graham Stuart]

I ask that the Committee reject the amendment and new clause. When retained EU law is a regulatory provision and is being amended significantly, we would expect Departments to put their measures through the Government systems for regulatory scrutiny, such as the better regulation framework.

Where measures are being revoked, Departments will be expected to undertake proportionate analytical appraisal, and we are exploring appropriate steps that we can take to appraise the resulting impacts. However, given that Departments will undertake proper and proportionate cost-benefit analysis in relation to amendments to retained EU law, we do not consider there to be a need to include a reference to impact assessments in clause 22, relating to commencement, as such procedures and approaches are baked into the way Departments behave. I therefore ask the hon. Gentleman to consider withdrawing the amendment.

[Brendan O’Hara]

I am disappointed but not in the least surprised by the Minister’s response. In the future, when we pick over the detritus of the Bill and people say, “Why did they do it the way they did it?” the Government will never be able to say that they did not know what would happen and that it was not brought to their attention. They have decided to plough on regardless with this self-imposed cliff-edge deadline. I will not push the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara]

I beg to move amendment 71, in clause 22, page 21, line 39, at end insert—

“(aa) section [Assessment of the impact of repeal of retained EU law];”.

[The Chair]

With this it will be convenient to discuss new clause 7—Assessment of the impact of repeal of retained EU law—

“Within three months of the passage of this Act, the Secretary of State must publish an assessment of the impact of the repeal of any retained EU law done under the provisions of this Act.”

[Brendan O’Hara]

I will again be brief. The amendment and new clause would oblige the UK Government to publish an impact assessment of the consequences of repealing retained EU law. If they are not prepared to publish an analysis before, it is incumbent on them to publish an impact assessment of the consequences of every piece of retained EU law that is being revoked, and for that impact assessment to be published no later than three months after the date that any revocation has taken place.

This proposal is similar to what we proposed with amendment 66. We understand that it will take a great deal of work for Ministers and officials, but given the seriousness of the consequences of getting this wrong, if this revocation of retained EU law has to happen, it should happen with as little negative impact on businesses and people’s lives. That may mean a little extra work for Ministers, their staff and Whitehall Departments, but we think it is well worth doing.

I hope the Minister will view this amendment—indeed, all our amendments—as being in the spirit of trying to make what we have described as a truly awful piece of legislation just a little better. As we said at the outset, given the rate at which the Government are planning to proceed, mistakes are absolutely inevitable, and people—our constituents and their businesses—will be hurt by those mistakes. If the Government are not prepared to do an impact assessment before they revoke EU law, it is incumbent on them to carry one out after the EU law has been revoked so we can understand the consequences of what has happened and hopefully avoid a future catastrophe.

[Graham Stuart]

I thank the hon. Gentleman for the constructive spirit in which he tabled the amendment and new clause. None the less, I ask the Committee to reject them. They are similar to the previous group. Given that Departments will undertake proper and proportionate analysis in relation to amendments to retained EU law, and that effort is under way to understand the potential impacts of sunsetting, we do not consider that there is a need to include them in the Bill. I therefore ask the hon. Gentleman to withdraw them.

[Brendan O’Hara]

I thank the Minister for his reply. It is nice to see that the temperature has come down somewhat. If only to reassure the public that what they are doing is working, it is incumbent on the Government to provide these impact assessments. The Bill is happening hurriedly and, dare I say it, with a lack of planning, and when it hits the buffers on 31 December next year, people have a right to know what that means for them. However, I will not press the amendment to a vote. I am certain that we shall return to this issue on Report, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara]

I beg to move amendment 61, in clause 22, page 21, line 42, at end insert—

“(da) section [Impact on the UK’s obligations under the Trade and Cooperation Agreement];”.

[The Chair]

With this it will be convenient to discuss new clause 1—Impact on the UK’s obligations under the Trade and Cooperation Agreement—

“Within three months of the passage of this Act, the Secretary of State must lay before Parliament an assessment of the impact of this Act on the UK’s obligations under the Trade and Cooperation Agreement between the UK and the European Union done at Brussels and London on 30 December 2020.”

[Brendan O’Hara]

When England and Wales voted to leave the European Union, and took Scotland and Northern Ireland out of the EU along with them, the United Kingdom Government signed a withdrawal agreement with Brussels. In return for certain rights and privileges in terms of trade with the EU, the United Kingdom promised not to diverge from the agreed level playing field set out in the trade and co-operation agreement.

I and many others have serious concerns that, if the Bill passes into law as it stands, the United Kingdom is in grave danger of breaching the international agreement it signed—I presume in good faith. On the presumption that the trade and co-operation agreement was signed in good faith, and that the UK Government would not knowingly and deliberately break such an important international treaty, I strongly urge the Government accept amendment 61. It would oblige the Government to publish, within three months of the Bill becoming law, an impact assessment of how the revocation of retained EU law, particularly on workers’ rights and environmental protections, has affected the trade and co-operation agreement.

The Government cannot be deaf to people’s concerns about the Bill, or to the genuinely held fear that, if it is pushed through unamended, and is implemented in the way that the Government have suggested, it will have a detrimental impact on the level playing field agreement with the European Union. If that happens, and if we stumble, accidentally or otherwise, into a situation in which we have broken the level playing field agreement, I fear that the United Kingdom could expect economic sanctions to follow. The last thing that the economy needs right now is another completely avoidable self-inflicted knock.

I urge the Government to accept the amendment. It makes sense. It sends a signal to our friends in the European Union that the United Kingdom is not about to unilaterally diverge from or break its international agreements, that we respect the level playing field, and that we will stick to what we said.

[Justin Madders]

I will be brief. This is an issue about which we are also concerned. No one wants to enter into a trade war because a Minister makes a mistake, and amends or forgets to restore regulations. That is what the Bill risks. I remind the Committee what the hon. Member for Watford (Dean Russell) said on Second Reading:

“I am very happy to make a commitment today that the Government will, as a priority, take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law. We will set out where retained EU law is required to maintain international obligations through the dashboard”—[Official Report, 25 October 2022; Vol. 721, c. 189.]

We are back to the dashboard. That is not quite as good as having something in the Bill, which is what the amendment seeks. However, it prompts a question for the Minister: when can we expect the commitments regarding the lovely dashboard to be honoured? We are all regularly hitting “refresh” to see whether the dashboard will be updated with the additional 100-plus or 1,400-plus Bills that have been identified. It is important that our international obligations are maintained. If there is a way of ensuring that Parliament is content, we are happy to support the amendment.

[Graham Stuart]

I ask the Committee to reject the amendment. None the less, the Government agree about the importance of the UK continuing to meet the obligations set out in the UK-EU trade and co-operation agreement. As a sovereign nation, we have the right to regulate as we see fit and in the best interests of the UK. This right is preserved in the UK-EU trade and co-operation agreement, and the Bill is part of us exercising that right. The level playing field provisions commit the UK and EU not to weaken or reduce overall levels of protection on labour and social standards, climate and the environment in a manner affecting trade or investment between the parties.

The Government’s intention is to ensure the necessary legislation is in place to uphold the UK’s international obligations. That is why we pledged on Second Reading to safeguard in domestic law the substance and legal effect of any retained EU law necessary to meet those international obligations. We have an exciting opportunity to embark on ambitious regulatory reform and remove outdated legislation that does not suit the UK. We can build on the high standards we have committed to within the trade and co-operation agreement, and at the same time boost competitiveness and productivity—something I hope the whole Committee will support. I therefore urge the hon. Member for Argyll and Bute to withdraw the amendment.

[Brendan O’Hara]

I thank the Minister for that response. Whether on workers’ rights or environmental protection, we have heard so much evidence and correspondence from people outside this Parliament who have genuine fears that this is the starting pistol of a deregulatory race to the bottom. If that were to be the case, I fear that the United Kingdom would be in breach of the level playing field agreement. I do not think the Government have fully considered the implications of this legislation. All my amendment sought to do was force the Government to consider those implications. I would push it to a vote, but I think it is another issue we will return to at a later stage, because it is vital that we are not seen to be tearing up international agreements or flying in the face of them in the way I fear the Bill will do. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Brendan O’Hara]

I beg to move amendment 65, in clause 22, page 21, line 42, at end insert—

“(da) section [Disapplication of the UK Internal Market Act 2020];”

[The Chair]

With this it will be convenient to discuss new clause 2—Disapplication of the UK Internal Market Act 2020—

“Where Scottish Ministers have used any power granted to them under this Act—

(a) to provide that any EU-derived subordinate legislation or retained direct EU legislation is not subject to revocation at the end of 2023, or

(b) to restate any provision of retained EU law (or, as the case may be, assimilated law), that legislation or provision shall apply notwithstanding any provision of the UK Internal Market Act 2020.”

[Brendan O’Hara]

Having been mercifully brief previously, I may take slightly longer now, because I think these measures are fundamental to our concerns about the Bill. Amendment 65 and new clause 2 would ensure that UK Ministers could not use the United Kingdom Internal Market Act 2020 to undermine or deny Scottish Ministers protecting retained EU law. These measures go to the heart of the issue—working between the internal market Act and this Bill.

We have said throughout Committee that even if this were a standalone piece of legislation, it would be sufficiently bad for us to oppose it at every step of the way. But for Scotland—and, I suspect, other devolved Governments—we have taken it in conjunction with the internal market Act. Not only does it present an existential threat to Parliament and the devolution settlement; this Bill is a disaster for crucial parts of the Scottish economy. I do not think it was coincidental or accidental. This is part of a deliberate policy to undermine and weaken devolution and the devolved Parliaments. It is designed to force the constituent parts of the United Kingdom to align their policies with those of the UK Government and to do what this Government tell them to do. The United Kingdom Internal Market Act 2020 knowingly created confusion and deliberately blurred the hitherto clear lines of demarcation that existed.

The Bill, when in effect, will impose this place’s will on areas that have been wholly devolved since the Scottish Parliament was reconstituted more than two decades ago. In the areas of the environment, health, food standards and animal welfare, the democratically elected Scottish Parliament is the body that sets policy and direction. Since the internal market Act came into effect, we have seen significant encroachment by the UK Government into these wholly devolved areas. Amendment 65 and new clause 2 would ensure that if the Scottish Government and Scottish Parliament decided that they wished to remain aligned to EU law, they could do so without the imposition of the internal market Act forcing them to change their position.

The infringement into the powers of our Parliament has, I fear, become a full-scale attack, with blanket, UK-wide—from Truro to Thurso—policies being imposed in areas over which this Government have no legislative consent. It is a crusade to weaken food standards, animal welfare, product labelling, environmental health and so much else by a Government who have no mandate to operate in those fields in Scotland. As I said earlier, this is the starting pistol on the deregulatory race to the bottom. That is why the United Kingdom Internal Market Act and the Bill have been brought in in this way. It goes completely against the spirit of devolution and is in direct contravention of the Sewel convention.

Before Second Reading, I met with the regional board of the National Farmers Union of Scotland in Argyll and Bute on a farm near Oban. The message was stark: farmers feel forgotten and undervalued. They have been battered by Brexit and they now face this Bill, which, they have said, is a potential death sentence for the agriculture sector in Scotland, which requires subsidies to manage the land, keep the lights on in the hills, provide employment and stem rural depopulation, as well as producing high-quality, high-value beef, lamb and dairy.

We know that the Bill will allow the lowering of food standards. We know that it will allow the relaxation of rules around labelling and animal welfare. We know that it will allow mass importation of inferior-quality products. All that will be an unmitigated disaster for Scottish agriculture. Our farmers are also painfully aware that, as it stands, there is very little that their democratically elected Parliament can do about it.

Last Wednesday, between our sittings on Tuesday and Thursday, I met Martin Kennedy, president of the National Farmers Union of Scotland, and his officials. They repeated almost word for word what I was told by my Argyll and Bute farmers. Martin Kennedy’s message to the Committee and this Government is that he and his members have severe reservations and concerns about the potential impacts of this Bill. As we do, he and his farmers accept that the Bill cannot be taken in isolation, but has to be put alongside the United Kingdom Internal Market Act.

Scottish farmers are not best noted for their political radicalism—probably because they are so busy battling the elements day and night to produce some of our best dairy and meat products—but this Government should understand that the Scottish agriculture sector is up in arms, maybe as never before, about the Bill and the United Kingdom Internal Market Act, and their disastrous consequences. If the Government will not listen to us here today and choose to ignore the Scottish Government, I implore them: listen to Martin Kennedy and his members about what this Bill will do to them, and their businesses and livelihoods. They are the ones who will bear the brunt of being forced into a UK-wide, one-size-fits-all regulatory framework that forces us to diverge from EU regulations.

When supermarket shelves become full of cheap, inferior cuts of meat, when lorryloads of chlorine-washed chicken cross the border and saturate the market, when animal welfare is a thing of the past, and when labelling rules are so relaxed that consumers do not know what they are consuming, that is a death knell for Scottish agriculture. The people of Scotland should be in no doubt that this Bill, coupled with the United Kingdom Internal Market Act, means one thing and one thing only: this place is coming for our Parliament and our democracy.

[Justin Madders]

Unfortunately, the new clause appears to apply only to Ministers in Scotland, not in the other devolved nations, but it does raise some important issues. If we start from the proposition that it is right that in areas of devolved competence, the devolved Administrations should have the ability to re-regulate their own priorities, which, I think, is where the Bill takes us, it does not take much to see where that might cause some difficulties, particularly when the Bill creates no wider duty in relation to the operation of the market access principles underpinning the UK internal market. The Bill creates the risk of new barriers to trade in the UK internal market. I accept that there is a conundrum there.

We want to allow the devolved nations to develop policy as per their own competencies, but there is no process in the Bill for resolution of any regulatory differences between the UK and the devolved Governments and, critically, no process for businesses or consumers to be consulted on the potential for new barriers between England, Scotland and Wales for certain categories of good. We need to understand how the Government intend to address that. Are the processes in the UK Government and devolved Administrations common frameworks post Brexit intended to apply to the Bill? If so, it is not clear from the Bill. Perhaps the Minister can reassure us on that.

--- Later in debate ---

[Graham Stuart]

I urge the Committee to reject the amendment. The UKIM Act was introduced to protect businesses, jobs and livelihoods following our exit from the EU. The amendment seeks to disapply the provisions of the UKIM Act in cases where Scottish Government Ministers use the powers contained in the Bill to preserve or restate retained EU law. The operation of the UKIM Act is essential in maintaining our integrated market to ensure the free flow of goods, services, and people through the recognition of professional qualifications throughout the UK. The UKIM Act provides certainty for businesses and consumers where divergent approaches to regulation are taken in different parts of the UK, and the provisions of the Bill do not change that.

We recognise and value four nation co-operation—that is one reason that all four Administrations jointly started the common frameworks programme—and we remain committed to working with the devolved Governments in areas of shared policy interest, including REUL. I can see why the hon. Member for Argyll and Bute, from an oppositional point of view, would make out that we will lower our standards, but that is absolutely not our intent. Food standards are a devolved matter—I think that will be reassuring for Martin and his members—and key measures in the Bill apply to the devolved Administration. Accordingly, the devolved Governments will be able to exercise the powers in the Bill to amend retained EU law in their existing devolved competencies. We will work with all the devolved Governments, including the Scottish Government, on retained EU law reforms in line with commitments and common framework agreements that cover food standards.

[Brendan O’Hara]

If food standards will be absolutely protected and enshrined, as the Minister said, will he give me a cast-iron guarantee that, if the Scottish Government decide they do not want chlorine-washed chicken, they can prevent lorryloads of chlorine-washed chicken from crossing the border? Can he give me a cast-iron guarantee that if the Scottish Government say that they do not want inferior, cheap, hormone-injected beef on Scottish supermarket shelves, they can prevent that from happening? Can he give me a guarantee that, should the Scottish Government decide they will stick to the legislation on animal welfare and passporting, that too will be absolutely protected in this legislation?

[Graham Stuart]

Of course, chlorine, chlorine dioxide and other chemical washes have not been approved for washing chicken meat, and therefore are not allowed to be used. The hon. Gentleman can paint up any number of other unfounded scare stories and ask for categorical assurance from the Government that they are not planning to kill every firstborn, but I assure the Committee that that is not our intention.

[Brendan O’Hara]

Let me rephrase the question. Should the UK Government decide that chlorine-washed chicken is acceptable and the Scottish Government decide it is not, could the Minister give me a cast-iron guarantee that the primacy of the Scottish Government’s decision to continue to ban chlorine-washed chicken would be respected under the terms of the Bill?

[Graham Stuart]

Of course, it may be a question as to whether the Scottish Government decide to approve chlorine-washed chicken. Imagine if the scientific evidence provided in Scotland did that; perhaps the Scottish Government are secretly planning to bring in chlorine-washed chicken, in which case we would have to consider how that would be dealt with. In that instance or any other, the Government will continue to work closely with the devolved Governments to manage intra-UK divergence, including through existing mechanisms such as the common frameworks programme and the UK Internal Market Act.

I will not insult the Committee by suggesting that the Scottish Government will do things that I honestly do not think that they will do; I just wish that the hon. Gentleman would do us the courtesy of doing the same. I urge him to withdraw his amendment.

[Brendan O’Hara]

I will not withdraw the amendment, and I will seek to divide the Committee. The Minister said that the UK Internal Market Act is there to protect the interests of business; perhaps it is there to protect the interests of business as long as the business is not a Scottish farmer. This will be the death knell for the Scottish agricultural sector. Those in the sector are not the most radical group on the planet, but this Government and legislation have fired them up as I have never seen before. This is not four nation co-operation; this is as far as we can get from four nation co-operation. This is one nation imposition. On that basis, I will seek to divide the Committee.

[The Chair]

Order. It is 11.25 am. We will start this afternoon at 2 o’clock with a Division. I know that Members are keen to get to the Chamber, so off you go.

Retained EU Law (Revocation and Reform) Bill (Eighth sitting)

Brendan O'Hara Excerpts

Committee stage
Tuesday 29th November 2022 Public Bill Committees

Division 16

Ayes: 2

Noes: 9

[Brendan O’Hara (Argyll and Bute) (SNP)]

I beg to move amendment 62, in clause 22, page 22, line 5, at end insert—

“(3A) But no provision of this Act, other than this section, may come into force in relation to Scotland unless the Scottish Parliament has passed a motion consenting to the Act.”

This is the last of the amendments in my name and that of my hon. Friend the Member for Glenrothes, but it is arguably the most telling, because it gets to the nub of everything that we have said about the Bill, while putting the Government on the spot about their commitment to the devolution settlement. The amendment says that none of the Bill’s provisions can take effect on areas of devolved competence unless and until the Scottish Parliament has consented to the Bill through the granting of a legislative consent motion.

I have mentioned on numerous occasions in Committee the seemingly endless stream of warm words on how valued, respected, appreciated and indeed cherished Scotland is by this place, and on how absolutely catastrophic it would be if we decided to leave this not-so-voluntary and not particularly precious Union. The amendment is a litmus test of that commitment to devolution. It would allow the Scottish Parliament to operate as it has done, and as it has always intended to, by giving it the power to decide on matters in a whole raft of policy areas—indeed, on everything that is not specifically reserved to this place. In that spirit, and mindful of everything said by the Prime Minister and others in the past week, I ask: is it too much to ask the Government turn that stream of warm words into action, to accept this amendment, and to prove to the growing band of doubters north of the border that the Government respect Scottish democracy after all? This is, in many ways, the last chance for the Government to secure their support and turn the tide. I wonder whether they will take it.

[The Minister for Climate (Graham Stuart)]

It is only right that all four nations of this United Kingdom should benefit from the ability to reform and amend retained EU law, so I reject the amendment. The Bill’s territorial scope is the whole UK. As such, all its key measures, including the sunset, will apply to the devolved Governments. That will ensure that we can amend or remove outdated EU-derived law that is no longer right for any part of the UK. The Bill is an essential piece of legislation that will enable the four nations of the UK to capitalise on the regulatory autonomy offered by our departure from the EU, and to fully realise the opportunities of Brexit.

--- Later in debate ---

[Peter Grant]

I will stick to amendment 62, Sir Gary. The amendment is the last chance in the Bill to respect the decision of the people of Scotland in 2014. Among other things, they voted the way they did because they wanted to remain in the European Union, and they confirmed that with a 24% margin of victory in the 2016 referendum. If the Minister wants to respect the will of the people of Scotland in respect to our relationship with Europe, he will support the amendment, and his Whip, the hon. Member for Beaconsfield, will hold up a board telling Government Back Benchers to support it too.

[Brendan O’Hara]

Again, I am not remotely surprised that the Government have rejected the amendment; they have rejected every single amendment we have tabled in the past six sittings, over three days. We have given the Government ample opportunity to respect the devolution settlement and for them to say to the Scottish people, “Yes, we respect your Parliament. We respect your democracy. We respect that you have the right to do things differently, as enshrined in the devolution settlement,” but they have rejected every single opportunity they have been offered.

My hon. Friend the Member for Glenrothes is absolutely right to say that Scotland is being denied democracy. This Bill, coupled with the UK Internal Market Act 2020, is a full-on assault on Scottish democracy. I will not push the amendment to a vote, but I will return to this issue on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Graham Stuart]

I beg to move amendment 7, in clause 22, page 22, line 9, at end insert—

“(b) the revocation of anything by section 1, or

(c) anything ceasing to be recognised or available in domestic law (and, accordingly, ceasing to be enforced, allowed or followed) as a result of section 3.”

This amendment provides that transitional, transitory or saving provision may be made in connection with anything sunsetted under Clause 1 or 3.

--- Later in debate ---

[Justin Madders]

On a spurious point of order, Sir Gary—no point of order is ever spurious in this place. I would like to thank you and Sir George for chairing the Committee, and the Clerks for their hard work in making sure that everything we have done has been in order—even this point of order. I also thank all Members for participating. We have had some robust and healthy debates, and I look forward to taking them forward in the main Chamber.

[Brendan O’Hara]

Further to that point of order, Sir Gary. I associate myself with the comments made by the hon. Member for Ellesmere Port and Neston, and thank the Clerks and the Government’s civil servants for the hard work that they have done. I realise that it has been a bit of mauling from this side of the House, but it was never, ever intended to be personal; it is purely political.

I thank you, Sir Gary, and Sir George, who guided us through the first two days of our proceedings. I am delighted to thank colleagues on both sides of the Chamber for the usually constructive, respectful and informed discussions that we have had over the past few days. I put on the record my sincere thanks, and those of my hon. Friend the Member for Glenrothes, to Emilie-Louise Purdie, who did so much work behind the scenes so that my hon. Friend and I occasionally knew what we were talking about.

[Graham Stuart]

Further to that point of order, Sir Gary—spurious or otherwise. I thank the Committee for being so indulgent of me, as I have come in on this final day. It has been a robust but extremely good-humoured Committee, which has managed—under your excellent chairmanship, Sir Gary—to move with expedition through the Order Paper in front of us. I thank the Clerks for their support for all that we have done, and my civil servants in BEIS. If the hon. Member for Argyll and Bute had trouble with his colleague being brought up to speed, I can assure him that BEIS civil servants had an even harder task at bringing me up to speed. Members will be the judge of whether they managed that very well, but they put in a great deal of effort. Finally, I thank the hon. Member for Ellesmere Port and Neston, and I congratulate him on his birthday last week and on the fact that he brought in his 50th birthday cake—it is just a shame I did not get a slice.

Bill, as amended, to be reported.